Date based archive De Novo: December 2006 Archives

December 28, 2006

Today / 12.28.06

Happy 25th birthday to Elizabeth Jordan Carr, the first American test-tube baby, and 150th to Woodrow Wilson.

Posted by PG at 12:09 AM | Comments (0) | TrackBack

December 27, 2006

Sinners in the Hands of an Ignorant Stockholder

Unsurprisingly, the first comment on Raffi Melkonian's latest post, about "why I think things like premarital sex, homosexuality, and so on, should continue to be designated as sins, even while society has grown entirely tolerant of those things, and, indeed, believes them not to be sinful," is someone remarking "Ah yes, for some reason the Catholic church likes to castigate homosexuals as sinners. The true sinners are the leaders of the church for not accepting everyone as equals." My reaction upon reading that sentence: being attracted to members of the same sex isn't even a sin within the Church, as far as I know, except inasmuch as the desire to have sex before marriage is sin -- i.e., that of unacted-upon lust, or what Jimmy Carter called adultery in one's heart. Regardless of its accuracy, Raffi's point,

transferred into lawyer speak, is that the church is simply offering safe harbors by being possibly over-inclusive with the definition of sin. Put it this way: we don't know what God thinks is sin or not. It might be that everything we think is sinful is actually not, and vice versa. The church, operating in that state of uncertainty, has done its best to divine what God thinks. If you follow those rules, and it ends up that the church was wrong, then the church represents that it will intervene on your behalf. But, that's no reason for you to agree with the church. As an independent moral agent, you're welcome to act however you like. The risk you run, however, is that you are wrong about what God thinks is sinful, and you won't have the church to back you up. Sin, to me, isn't so much restriction as liberation. If you keep to the relatively simple rules the church sets out, then you don't have to do much of the moral spade-work in trying to figure out what God might think. Otherwise, you're afloat in an unfathomable world. I realize that a lot of this sounds like I've been spending too much time reading SEC regulations.
Actually, to me this sounds like Raffi's been reading SEC regulations without realizing why those regulations exist.

Behind the Securities and Exchange Commission's obsession with disclosure is a tacit acknowledgement that it has a limited mandate to force companies to do things, but a nearly unlimited one to force companies to tell things. It can't make Acme Corp. pay its CEO a nonridiculous salary and benefits package, but it can make Acme put that package in terms of increasing simplicity. I attended the SEC meeting this summer where they voted on the new disclosure rules, and the emphasis on methods of communicating information -- narratives! graphs! tables! -- as well as the repeated use of the phrase "plain English" almost made me want to read a 10K just to see how obscure the prior rules had allowed lawyers to be, and whether there were contenders for the Golden Bull in there. Perhaps the SEC ought to start giving its own awards for compliance and lack thereof with its handbook.

The idealistic regulator hopes that if companies tell their stockholders what's happening, the stockholders will exercise their voting rights and kick out the board that messes up, particularly given the difficulty in successfully litigating against a board that messes up with even a modicum of good faith. But here is where the audience for the misbehaving corporation, falling away from the SEC's rules, differs from that for the sinner falling away from the Church's teachings: whereas God is popularly supposed to be omniscient, the vast majority of stockholders don't even know what's contained between the covers of the massive documents sent to them. And God knows when you've sinned and damned yourself to hell (if as free-willed creatures we damn ourselves, and God is just the all-knowing Bystander), whereas as long as earnings stay up, stockholders mostly will stay happy and uncritical. Certainly the failure to disclose information that, if known, might have caused stockholders to act differently can be reason for a lawsuit, but it doesn't seem to have taken any company down.

Of course, stretching the comparison this far requires the assumption that much as a company exists to do something other than inform its stockholders of what it's doing, humans exist to do something other than avoid sin. In Christianity, the avoidance of sin -- which in any case is impossible -- is less important than belief in Christ. Acme makes widgets and obeys the SEC rules; Christians believe in Christ and obey their Church. If you follow the rules without doing what you exist to do, it's not really much help when it comes to the day of (business) judgement.

Posted by PG at 10:08 PM | Comments (2) | TrackBack

December 26, 2006

First Thing We Do, Let's Mention the Lawyers

The attorneys in this story are buried toward the end. At some point, we fell lower in the disrepute rankings than other paperwork producers.

Foreign businesses have embraced an obscure United Nations-backed program as a favored approach to limiting global warming. But the early efforts have revealed some hidden problems. Under the program, businesses in wealthier nations of Europe and in Japan help pay to reduce pollution in poorer ones as a way of staying within government limits for emitting climate-changing gases like carbon dioxide, as part of the Kyoto Protocol.

Among their targets is a large rusting chemical factory here in southeastern China. Its emissions of just one waste gas contribute as much to global warming each year as the emissions from a million American cars, each driven 12,000 miles. Cleaning up this factory will require an incinerator that costs $5 million -- far less than the cost of cleaning up so many cars, or other sources of pollution in Europe and Japan.

Yet the foreign companies will pay roughly $500 million for the incinerator -- 100 times what it cost. The high price is set in a European-based market in carbon dioxide emissions. Because the waste gas has a far more powerful effect on global warming than carbon dioxide emissions, the foreign businesses must pay a premium far beyond the cost of the actual cleanup.

The huge profits from that will be divided by the chemical factory’s owners, a Chinese government energy fund, and the consultants and bankers who put together the deal from a mansion in the wealthy Mayfair district of London.

It's not like lawyers aren't involved; the article quotes "Michael Wara, a carbon-trading lawyer at Holland & Knight in San Francisco," but he sounds suspiciously tree-huggerlike. "Environmental groups say that governments in developing countries should either require factories to incinerate the waste gas as a cost of doing business, or receive aid from wealthier countries to cover the relatively modest cost of incinerators. 'Couldn’t we pay for the cost, or even twice the cost, of abatement and spend the rest of the money in better ways?' Mr. Wara asked."

Bah, you wouldn't hear those Mayfair consultants and bankers say such a thing. I'm only consoled by one of the last few sentences: "For small projects involving less than $250,000 worth of credits, fees for deal makers, consultants and lawyers can far exceed the cost of installing equipment to clean up emissions."

Posted by PG at 05:37 AM | Comments (0) | TrackBack

If Blogs Could Blush

Thanks to Blawg Review for its commendation of De Novo as "Best Group Blog by Law Students." As we are striving to keep this as such, and with De Novo's two most prolific posters graduating this year, we hope that pre-law students, 1Ls and 2Ls will be interested in joining us and taking over. Remember you can e-mail PG at the address in the right sidebar at any time if you'd like to try blogging with us.

In the spirit of bringing attention to those newer bloggers, here are some student blawgs that began in 2006:

can i quit yet? which in its title and lack of capitalization reminds me of some of the despairing comments that still are made to an old post of Jeremy's about dropping out of law school. The littlest tortfeasor, meanwhile, is leaving law school after one semester and two posts.

Law School Virgin, who has lost her law school virginity but not the other one, though she's inching toward it. The author of My So-Called Law School aspires "to get my JD and pass the bar without losing my sanity, and I'm hoping to make some good friends and maybe meet a cute guy along the way."

Top Gunner. Only now, two and half years after starting law school, have I realized that playing Gunner Bingo actually would have been incredibly beneficial to me because then I would have paid more attention in class, if only to know whether the gunners on my playcard were talking.

Luis Villa's blog, which seems to be taking over in the areas of tech and Columbia-specific posting where Three Years of Hell left off. Another CLS 1L, Tanner Jones, posts infrequently, lengthily and usefully at Legal Economics.

There's I'll Be the Juddge of That, Auri Sacra Fames (no, I don't know what it means), but chickenwingsandbeer most overtly bids to assume the WingsandVodka mantle as UT blawgger.

Useless Dicta, whose About hits a little too close to home, as does the tagline for The Life and Times of a Former Hoss; Slacker & Slacker LLP, who currently are slacking on their blog.

Proving that blawgging draws all kinds: on the one hand, Perky to a Fault; on the other, Law Bitches.

Mel Woods, to whom I wish the best in her mom's recovery, and although it started in 2005, I don't think I'd read Rambling Without Cause before, and now I'm both sympathetic and geographically envious.

If I've missed your newish student blawg, feel free to link in the comments.
Yet Another Law Blog, Butterflyfish, Jobu, 3L TPE at Semantic Chicanery, the rather terrifying folks at Gump's Law (interests are "Law Review, Nothing else" and "Conservatism and Law Review. In that order"), the one JD/MBA and the one pre-law I've dug up, round out the list.

Posted by PG at 03:52 AM | Comments (0) | TrackBack

December 21, 2006

It Was Funnier When It Took Me a Moment

I prefer the bleeped version of the latest Saturday Night Live digital short that is making the rounds, but the New York Times promotes the, er, uncut one.

In less than a week the official uncensored version of the video has been viewed by over two million people on YouTube alone. In the process “Saturday Night Live” appears to have become the first scripted comedy on a broadcast network to use the Web to make an end-run around the prying eyes of both its internal censors and those of the Federal Communications Commission, whose jurisdiction over “Saturday Night Live” effectively ends at the Web frontier. [...]
“Those people who go on the Internet will not be shocked by this,” Mr. Ludwin recalled thinking. “Obviously there are some people who will be offended. Those people are probably unlikely to go searching for it on the Internet. It’s just funny.”
Given that NBC is posting this themselves, I'm surprised that they aren't putting in ads; how much would Nike or some other youth-oriented brand that didn't mind being associated with an obscene skit pay to be seen by 3.5 million people, with no other advertising in the video to distract? On the other hand, though I'm rarely in cahoots with those who think being explicit is the same as being stupid and that the euphemism is the highest form of speech, there's still something about that second when you think, "It's what in a -- oh." I hadn't read to the end of the article when I started this post, but it turns out that people at SNL agree with me.
Seth Meyers, the show’s head writer, said that he and Mr. Michaels were also mindful that sometimes the funniest material -- whether on their show, or Howard Stern’s radio show -- was borne of butting up against boundaries, either from the outside or self-imposed.
Sizing up the two versions of the “Special Treat” video, Mr. Meyers observed, “The most interesting thing is that it’s actually not funnier uncensored.”

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Changes for Denise and Sherry

Today Denise Brogan graduated from University of Michigan Law School. Harass her as your new Catharine MacKinnon connection.

Today Scheherazade Fowler, whose Stay of Execution was one of the original links on the blogroll, turned 34 and has moved to Stay.

Posted by PG at 06:24 PM | Comments (1) | TrackBack

December 20, 2006

Good Ol' Virgil No Goode

I didn't want to blog about Rep. Virgil B. Goode's (R-VA 5th) bizarre declaration that a Muslim Congressman should not be allowed to swear on the Koran in the unofficial, "photo-op" ceremony, and that it's connected to a coming Mulim majority created by illegal immigration, until there was some confirmation that the letter to constituents was real and had not been penned by a mischievous staffer or while Goode was suffering from a deranging illness. According to the Richmond Times-Dispatch, Goode's press aide Linwood Duncan says, "He stands by the letter." I frankly hadn't realized that Goode either is this nuts or (to use my version of Hanlon's Razor) thinks his constituents are this nuts and that this is a good way to solidify his position with them. Goode migrated to the right as many Southern politicians have: he was a Democrat in the 1998 election, an independent when I knocked on doors to ask people not to vote for him in 2000, and has been listed as a Republican in the last three elections. It's a sensible move, as his district mostly is conservative, aside from the chunk that is Charlottesville liberal. But I certainly never got the impression in four years of living in the area that a majority of residents were so intolerant or uninformed as to applaud the sentiments Goode expresses:

Thank you for your recent communication. When I raise my hand to take the oath on Swearing In Day, I will have the Bible in my other hand. I do not subscribe to using the Koran in any way. The Muslim Representative from Minnesota was elected by the voters of that district and if American citizens don’t wake up and adopt the Virgil Goode position on immigration there will likely be many more Muslims elected to office and demanding the use of the Koran. We need to stop illegal immigration totally and reduce legal immigration and end the diversity visas policy pushed hard by President Clinton and allowing many persons from the Middle East to come to this country. I fear that in the next century we will have many more Muslims in the United States if we do not adopt the strict immigration policies that I believe are necessary to preserve the values and beliefs traditional to the United States of America and to prevent our resources from being swamped. The Ten Commandments and “In God We Trust” are on the wall in my office. A Muslim student came by the office and asked why I did not have anything on my wall about the Koran. My response was clear, “As long as I have the honor of representing the citizens of the 5th District of Virginia in the United States House of Representatives, The Koran is not going to be on the wall of my office.”
In fairness to Rep. Goode, those who keep pointing out that Rep.-elect Ellison is not an immigrant are missing what probably was meant by "The Muslim Representative from Minnesota was elected by the voters of that district and if American citizens don’t wake up and adopt the Virgil Goode position on immigration there will likely be many more Muslims elected to office and demanding the use of the Koran." Goode most likely was referring to Ellison's having been elected from a district that has a growing Muslim population -- albeit more from Somalia and Ethiopia than the Middle East -- and one that has been in conservative news lately. Goode fears that a Muslim in Congress is a harbinger of the day when Muslims are sufficiently large in number as to destroy "the values and beliefs traditional to the United States of America."

Again, in right-wing media this hardly is an uncommon concern; opposition to Ellison's swearing on the Koran was touched off by Dennis Prager, whose idea of a compromise was "The Bible is the repository of our values, not the Constitution... and I'm asking him to honor that and include the Bible along with the Koran." However, I'm surprised that Goode's press folks haven't followed the matter closely enough to realize that even among Republicans, Prager's position is a fairly marginal one; he has been disagreed with by everyone from Sen. Norm Coleman to Rep. Tom Tancredo (a prominent immigration opponent) to several of his fellow conservative columnists.

While illegal immigration is of concern to voters, albeit more in Northern Virginia than in the southeast, I suspect that like Sen. George Allen, Rep. Goode has overestimated the xenophobia of his audience. There are some plausible fears for him to fan, such as that of Border Agents unable to do their jobs, or a U.S. too closely linked to Canada and Mexico, but terror of an Islamic horde overrunning America isn't one of them.

Posted by PG at 02:17 PM | Comments (1) | TrackBack

December 19, 2006

If I Were a Law Prof

Ya ha deedle deedle, bubba bubba deedle deedle dum. A couple of Sententias bloggers are posting about the proper way to deal with readings and exams.

Raffi supports David Post's controversial call to make all law school reading full text rather than the edited casebook version. When I took law school constitutional law, I rarely used the book and just pulled up the cases on my laptop during class -- but that was because I had a) read casebook versions of most of them already in undergrad courses; and b) become accustomed to picking through constitutional law cases after a year blawgging. In my evidence class, on the other hand, I would loathe having to pick through the full text of every case in the assignment in order to pick out the one distinction the professor wants to get across about how Rule 901 has been applied. I know that I need to know these rules, just please teach them to me and let me go collect my other 15 credits, for God's sake. Prof. Post's enthusiasm for the full text of every case indicates that he's thinking too much within a subject he already knows and therefore feels plenty of time to luxuriate in the semicolons thereof. I'm not saying that people can't get a deep feeling for copyright, or at least for copyright professors, but most of us lack that devotion.

I wonder if Raffi's enthusiasm for Post's proposal and difficulty in understanding procedural posture stem from a difference between his law school and mine. While Harvard* apparently shoves first years right into substantive law, we get Legal Methods to teach us how to read and brief a case, and how legal reasoning works. At least in my class, they were all old dull cases, I think purposely to make us accustomed to slogging through such material and picking out what was important. (Or given the age my professors tend to be, perhaps these were the cases in which the prof felt most adept.) The course was pass/fail and only as interesting as it was thanks to a good teacher -- I got so sick of hearing about people crushed between railroad cars that I managed to block out the term for what they were doing out of my memory** -- but it indicated that our school realized we didn't matriculate already knowing how to read this material. I feel an intensive three weeks of reading 19th century cases in a Socratic class where one may be called upon to describe the procedural history, facts, holding, etc. is sufficient to learn how to find these things.

Will takes up Prof. Vladeck's question of how an exam grader ought to deal with students' going over a stated word limit in their answers, and says, "For what it's worth, when grading papers, I usually state ahead of time an explicit if vague remedy-- that a paper that exceeds the length must make up for it in superior quality. The vigor of this thread is making me contemplate replacing it with a harsher rule, though."

Coincidentally, that's actually the rule I have for the exams I'll be grading during break, albeit one I came up with under duress. Specifically, I'd sent out a "model answer" from the previous year's exam, and someone e-mailed to point out that it was over the stated word limit and what did that mean about these word limits? I retorted that the model answer writer had made the extra words worth it, and those who just ran to excess verbiage without a reward wouldn't be given the same slack. But I have it easy; it's a pass/ fail, open everything, 10 questions to be answered within five days test, and if someone gets everything right while writing too much pointlessly, she'll get a pass and just not be considered for the dean's award. Unlike Vladeck's associate professorship, this ain't my full-time job. (Being driven crazy by the mock trial program is...)

Vladeck's method, which would decrease the student's grade in proportion to how much over the limit she was, struck me as unduly harsh, and certainly a departure from the standard noted in the comments and observed by every prof I've had who imposed word limits, which is to stop reading at the point where the answer goes over. The notion of failing a student who wrote excellent answers aside from their being too long disturbs me, but it seems a likely consequence: "Thus, for the questions for which the student wrote twice as much, halve the grade; for the question for which the student exceeded the word limit by 50%, take 1/3 off the grade for that question." Assuming all questions are weighed equally and worth 33 points each on a 100 point scale, a student with an otherwise perfect exam who went over would have 16.5 points taken off the 100 for each of the answers that was twice as long as it ought to have been, and 11 points for the one that was a 50% too longer. That's 44 points subtraced from 100, which gives the student a 56 -- far into failing range. Such a result with a nonstandard method, and that has not been previous advertised as the consequence of disobedience, is ridiculous.

Sheesh, at least I stalked into the first review session this year and warned everyone assembled that I'd failed some of their predecessors and wouldn't hesitate to fail them if they didn't take the course and exam seriously enough to write pass-worthy answers. Any of them who are going down were put On Notice.


* If you google "harvard law school," you see the following on the search page:
Harvard Law School
The world's premier center for legal education and research.

Every other law school comes up on the search page as some variation on "Features news and events at and about --- Law. Provides information about programs..." And they wonder why people give them shit.

** To avoid its keeping me up all night, I looked it up. Damn coupling. If I could think of a word that rhymed with it, I'd write a Law Revue ode just to get it out of my system before graduation. Though I do heart that Justice Thomas listed the problems with manual coupling in the following order:

For most of the nineteenth century, the link and pin coupler was the standard coupler used to hook together freight cars. It consisted of a tubelike body that received an oblong link. During coupling, a railworker had to stand between the cars as they came together and guide the link into the coupler pocket. Once the cars were joined, the employee inserted a pin into a hole a few inches from the end of the tube to hold the link in place. The link and pin coupler, though widely used, ultimately proved unsatisfactory because (i) it made a loose connection between the cars with too much give and play; (ii) there was no standard design and train crews often spent hours trying to match pins and links while coupling cars; (iii) links and pins were frequently lost, resulting in substantial replacement costs; and (iv) crew members had to go between moving cars during coupling and were frequently injured and sometimes killed.

Posted by PG at 01:58 AM | Comments (0) | TrackBack

December 17, 2006

Don't Try This at Home

Engadget (via NYTimes) cheers a man for his interpretation of the rules of civil procedure:

Pat Dori, a disgruntled Dell customer who found no resolution to the issue of a broken laptop after five long months and 19 wasted phone calls, decided to go legal and sue the company for failing to adequately address the problem. The method by which Mr. Dori initiated the claim is the juicy core of this story: instead of going through the normal process of sending the court papers to Dell's headquarters in Texas, Dori thought to have the papers delivered to a Dell shopping mall kiosk instead. Quite unsurprisingly, no-one from Dell turned up in court on the stipulated date, resulting in Dori winning a $3,000 default judgment and a ruling to allow bailiffs to close the kiosk and seize items if the judgment was not paid. Dell has now settled the case out of court for undisclosed terms, although the company would have appealed the decision -- had it actually turned up to court, that is. Mr. Dori, our latest hero for sticking it to the man in such a crafty manner, says that he thinks "any regular person can do this," as long as you "have the law on your side."
I doubt that the law was on Mr. Dori's side in serving process to a Dell shopping mall kiosk. One commenter does note, "Have a kiosk in a mall? You must accept service of process there. Civil Procedure wonks could point out that, most likely, by opening the laptop package & using the computer he agreed to serve process on Dell Inc.'s home office only - but clearly, litigating that would have cost more than $3k." If such dodges became common practice, I doubt that Dell would continue to take the attitude that litigation isn't worth it. Presumably this suit must have been filed in a state with lax service standards, as the standby method under FRCP 4(6)(1) is a bit more demanding: "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant."

Posted by PG at 03:26 AM | Comments (2) | TrackBack

Boycott Bad Employer?

In an attempt to remind myself where my favorite dim sum restaurant is, I inadvertently discovered that it is a terrible employer. Its only mentions in the NYTimes archives are for failures to abide by good labor practices, ranging from a 1995 battle over unionization (though this being Chinatown, the neighborhood came out in support of the restaurant because they felt the union's street theater tactics drove away business) to a two-year investigation and lawsuit by the NY AG that resulted in a settlement of $1.1 million to 58 workers who said they had been cheated out of tips and wages. In April of this year, the Urban Justice Center and Weil, Gotshal & Manges filed another suit, with plaintiffs organized by the Chinese Staff and Workers’ Association, saying the restaurant illegally siphoned off tips from the more than 50 members of the service staff.

I feel like I might have a moral obligation not to patronize a business that seems habitually to mistreat its workers. Crossing union picket lines doesn't bother me as much; having lived in right-to-work states before I came to New York, I am a little skeptical of unions due to their tendency to redistribute power from employer management to the union hierarchy, rather than the workers. To some extent, I agree with the sentiments expressed by those who supported Jing Fong in 1995:

Unions are a sensitive topic among Chinatown workers, who fear that they would lose financially under union contracts. Waiters, for example, say they fear losing salary and tips because owners would hire second shifts to avoid paying overtime. People at the dinner acknowledged that restaurant workers are often underpaid and overworked. But they said it is up to the government, not unions, to enforce labor laws.
"If there are labor problems in the restaurant, then let the government handle it," said George Hui, president of the influential Chinese Consolidated Benevolent Association, an umbrella organization representing more than 70 family, business and area associations in Chinatown. "There is no need for Mr. Lam to haul out the coffin and hurt the Chinatown economy."
("Haul out the coffin" is literal, not metaphorical, because the union was staging mock funerals complete with mourning dancers outside the restaurant.) Because government enforcement often is slow and incomplete, unions make sense as a way for employees to empower themselves and employers to avoid the transaction cost of hammering out the relationship through a lawsuit. But employers aren't obligated to be union-friendly, whereas they are obligated to obey the law. As far as I know, however, none of the parties associated with the current suit are encouraging their allies to stop eating at Jing Fong, so I guess I'll continue with my Sunday brunch plans and just hope the waiter hangs onto his tip.

Posted by PG at 12:03 AM | Comments (0) | TrackBack

December 16, 2006

Today / 12.17.06

Today in History (1862) - General Ulysses S. Grant issues General Order No. 11, expelling Jews from Tennessee, Mississippi, and Kentucky.

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December 15, 2006

Slyly Undermining the ADA

One thing that I wish I'd inculcated more forcefully in the media class I TAed: if you're going to write about a topic and discuss its legal implications, glance over the law or at least have a lawyer review your article before publishing. Just getting quotes from an attorney is not enough. Businessweek claims,

Attorneys say recognition by a court -- whether in this or some future litigation -- that Internet abuse is an uncontrollable addiction, and not just a bad habit, could redefine the condition as a psychological impairment worthy of protection under the Americans with Disabilities Act (ADA).
That in turn would have far-reaching ramifications for how companies deal with workplace Internet use and abuse.
For starters, businesses could be compelled to allow medical leave, provide counseling to or make other accommodations for employees who can't control Internet use, says Brian East, co-chair of the disability rights committee of the National Employment Lawyers Association.
East says recognizing Internet abuse as an addiction would make it more difficult for employers to fire employees who have a problem. "Assuming it is recognized as an impairment . . . it is analyzed the same way as alcoholism," says East.
Yet the scenario the article opens with is about someone whose Internet use violated the company's policy. Even a person with a recognized substance abuse problem can be fired for using the substance on the job, according to Sec. 12114:

(c) Authority of covered entity. - A covered entity- (1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees; (2) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace; (3) may require that employees behave in conformance with the requirements established under the Drug­Free Workplace Act of 1988 (41 U.S.C. 701 et seq.); (4) may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee ...
So if James Pacenza was underperforming compared to other IBM employees, and was in sexual chatrooms while at work, it doesn't matter whether internet addiction is treated like substance addiction under the ADA -- he still could be fired without violation of discrimination law. I see such articles as undermining the ADA because they make people think that we have this dumb law that gives people a free pass for their bad work behavior as long as they claim it as a disability, which isn't true. Congress deliberately carved out the addictive behavior it recognized, i.e. drugs and alcohol, from the ordinary coverage of the ADA to make employees responsible for at least controlling themselves enough not to shoot up or chat up while at work.

Personally, I would want to see CT scans on a person claiming addiction to an action rather than a substance; we know fairly well how people end up addicted to drugs adn alcohol due to the neurological effects (even chocolate causes the brain to produce opiates). If being online causes the brain to produce certain chemicals, I'd be inclined to concede that it should be recognized as an addiction. This seems implausible, however. Unlike sex, which has been a very longstanding part of the human condition and induces dopamine rushes, the internets are rather too new to alter a slowly evolving brain.

Posted by PG at 04:45 PM | Comments (0) | TrackBack

Butt for the ACLU

I would not know that a Virginia art teacher has been suspended from his job, due to his students' finding a three year old video of him demonstrating how to paint flowers and butterflies with one's bare rear end. "Although the ACLU of Virginia does not officially represent Mr. Murmer, we are concerned about the constitutional issues involved in this controversy," because "the ACLU believes the First Amendment should protect his right to engage in expressive activities on his own time." The ACLU is right that as a common sense matter, "[i]If Mr. Murmer had not been suspended, the resurfacing of this old video would have probably just created a two or three day buzz before dying out altogether."

However, I do think that government employees can be fired for off-the-job First Amendment activity if such activity genuinely impedes their work. Practically speaking, art teachers usually are known to be weird, so one who paints with his buttocks isn't going to lose much respect anyway. Art classes are supposed to be creative environments, and as long as Murmer makes clear that his particular technique should be practiced only in the privacy of one's own home and never at school, students' giggling about how he looks in a burnt umber thong isn't going to make much of a difference.

I would be more worried if the assistant coach who doubles as the sex-ed teacher (a common duality immortalized in Mean Girls) showed up in pornography. Porn also is First Amendment protected, yet is an expression that would send the wrong message to students who are getting even the standard talk about how sex ought to occur with mutual respect and caring, much less the Bush Administration curriculum about abstinence until marriage. Surely if limiting students' in-school speech in order to maintain a proper learning environment is constitutional, limiting teachers' expressive behavior would be as well. Speech that clearly is speech, and particularly falling within the core aspects of the First Amendment -- say, a biology teacher required to include evolution on the syllabus who publicly supports intelligent design instead -- is making a political, scientific, religious statement that should not be grounds for dismissal even if it may conflict with his educational role. Yet behavior that runs contrary to the ideas and values the school attempts to inculcate, such as a writing teacher who becomes known for plagiarizing, even if it includes a First Amendment-protected element, should be subject to policing.

Posted by PG at 12:14 AM | Comments (2) | TrackBack

December 13, 2006

Here's a Softball

I have an honest question for current and former law students. Do you prefer short fact patterns that test your general knowledge of a topic or long detailed ones with focused issues? The reason I ask is because I had a final that was the equivalent of asking, "A made an offer, B accepted but didn't perform. Discuss contract ramifications." I mean I seriously had to write a freakin' treatise on the topic.

Posted by Armen at 11:27 PM | Comments (2) | TrackBack

Refusal to Serve

Does anyone know whether, in places where prostitution is legal, refusing to have sex with a customer on the basis of race, disability, etc. violates anti-discrimination laws? Someone who feels distaste toward, say, one-armed white males probably can handle mixing them drinks, showing them houses or even performing their enemas, but I wonder if we would make such a person liable under civil rights legislation for refusing the business of a one-armed white man who wants to have sex with him or her. A 2002 article from UChicago's Ethics journal touches upon nondiscrimination, but only as one of many regulations that would fall upon legalized prostitution and detract from workers' sexual autonomy. The author's footnote mention of rural Nevada brothels fails to say whether any have run afoul of the kind of laws he perceives as interfering with specifically sexual autonomy.

This could be an issue for non-prostitute sex workers; if a workplace countenances a stripper who refuses to do lapdances for black customers, would those customers have a basis on which to sue the club, as long as it had admitted them in the first place? Sex-oriented public accomodations certainly lack the element of necessity that undergirded the Civil Rights Act of 1964; Congress could claim that the interstate commerce clause gave authority to forbid discrimination, because if a person of color traveling on business could find neither a roof over her head nor a place to eat, this incapacitated her from business travel and ultimately impacted interstate commerce. Assuming that there was some commercial necessity for patronizing a strip club -- taking clients there, perhaps -- as long as the black businessman is admitted, he can engage in client relations. Being refused the lapdance might be embarrassing, but the commerce clause isn't there to save people's feelings.

This bears certain parallels to the German unemployment compensation scheme that, because brothels had been legalized, might have required unemployed people who had been offered jobs by brothels, phone sex lines and other parts of the sex industry to accept them or lose benefits. In both cases, sexual autonomy has a price: that of a lawsuit and attendant monetary penalties, or of lost benefits. But in neither case can someone be literally forced by government coercion to have sex if he doesn't want to.

Posted by PG at 11:01 PM | Comments (2) | TrackBack

December 12, 2006

Activist Court's Ruling Criticized by Hawkish Legislators

Not US, Israel. Is allowing Palestinians to sue for damages caused during Israeli military incursions the equivalent of Section 1983 claims, or do we have common law that covers the obligation of government bodies to pay for damage caused by their operations? It's not quite the same as a Fifth Amendment taking.

The linked article makes for weird reading because it tries to do a catchall "today in the Middle East conflict" report, including news about three little boys' getting killed along with the note about the Israeli high court, so it concludes: "Witnesses said the incident in Khan Younis was the result of a misunderstanding during a protest march over the shooting. As Fatah demonstrators passed a Hamas charity organization, they fired assault rifles into the air. Hamas gunmen fired briefly in response."

Maybe not using firearms as a means of expressing one's most deeply felt emotions would help decrease the number of kids who get shot. I'd give the same advice to the Grangerfords and Shepherdsons: Do not mix the First and Second Amendments.

Posted by PG at 11:34 PM | Comments (0) | TrackBack

I Spy an Antitrust Exam Question

As we beat the proposed hostile takeover of Delta by U.S. Airways pretty soundly in class discussion, had the professor not already written the exam, I suspect he would be tempted to throw in a question adding a new fact to the mix: What if Continental and United were simultaneously talking merger? (It's like talking dirty for corporations, except with the FTC in the room checking on how big your market share is.) Truly, an HHI calculation that demands we be allowed to bring in a calculator, the rules against electronic devices notwithstanding.

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Peace on Sea-Tac

Though in only partial agreement with this column by Rabbi Marc Gellman, I do appreciate his remark,

As for those secularists who want no religious symbols anywhere in sight on public properties, I respect your objections and I understand your fears that any breach in the wall of separation is deeply troubling. I do not agree, however, that holiday displays are such a breach. They are colorful and benign and easily disregarded by those who wish to walk by them and go on to instead admire the great and sublime beauty of the fast food signs in the food court.
We can go one of two ways while maintaining the separation of church and state: either accept that public displays of trees, mangers, menorahs and so forth will be undifferentiated from the eagerly-awaited Starbucks holiday cups (e.g., don't stress out if the airport employee flubs it and the menorah is fully lit before the eighth night); or maintain the deep religious significance of those symbols by keeping them out of commercial areas (e.g., cease whining when Wal-Mart greeters say "Happy Holidays!" instead of "Merry Christmas!"). Holiday displays certainly are colorful and benign, but the successful mainstreaming of Hanukkah means that I have a dishtowel from Duane Reade decorated with Stars of David, dreidels and a menorah. Hey, I'm an ecumenical agnostic -- it's part of my tradition.

The threat by another rabbi to sue the airport if a menorah wasn't installed struck me as odd, considering that Judaism isn't particularly inclined to missionary activity. Christians and Muslims might be excused for trying to fill public spaces with religious paraphernalia because their religion commands that they try to push everyone else into the same faith, much as keeping Jehovah's Witnesses or Mormons from going door-to-door would impinge on their free exercise. In contrast, Jews, Hindus and other non-proselytizing believers don't have any justification for similar behavior, other than a demand to have their religions be as publicly acknowledged as the majority ones. Getting "Judeo-" tacked on to the standard references to "Christian tradition" represents a rather small victory in that battle, given how much credit the usually Christian users of the phrase give themselves for not being parochial, relative to how much they actually are thinking about Judaism. As for Kwanzaa, putting up symbols of it in areas that aren't particularly that of the African American community would be weird, given Kwanzaa's focus on empowering black families, businesses and individuals.

Posted by PG at 12:28 AM | Comments (0) | TrackBack

December 11, 2006

How to Vote

Some say litigators are inherently competitive. Appellate lawyers are outright ferocious.* So in that vein, the H-Man is plugging for votes as the best law blog of 2006. Since the powers that be seem ignorant of the greatness that is De Novo, I'm willing to throw our votes behind How Appealing. Follow the instructions on that website. Remember, one vote per browser per 24 hours. I expect an average of 2.5 votes from De Novo readers.**

* I would have liked to have seen the competition stepped up with the addition of SCOTUSBlog to the list of candidates. Maybe it would have driven Tom Goldstein to post a podcast about why that blog should get your vote...and how to win a motion to file in forma pauperis.

** I own a laptop and a desktop and the law school has PLENTY of computers, and I'm not stingy with my votes.

Posted by Armen at 03:17 AM | Comments (1) | TrackBack

December 10, 2006

How I Know My 9AM Tax Prof Will Have No Mercy

From "In Honor of Walter J. Blum: Walter J. Blum and My Brilliant Career," 55 U. Chi. L. Rev. 725:

Perhaps other social scientists can avoid it, but lawyers must surely be concerned with the question of "What's fair?" or "Who gets what?" In a sense, it is the only question worth discussing seriously. ...

The original Materials never enjoyed wide adoption in the law schools because, for many years, there was little practical reason to interest students in insolvency problems. Indeed, Walter once offered to mail me his annual royalty check if I would send him a postage stamp. But the influence this novel work has had on class materials subsequently published by other academics -- which do enjoy wide and profitable adoption -- and on the teaching of corporate law has been considerable.

Having completed this brief appreciation, I must add that in at least one important undertaking Walter Blum failed utterly. This was his earnest and determined effort -- buttressed by threatening notes from the Dean's office -- to get the writer, then a second-year student, to attend his early morning classes in federal taxation. Actually, I did attend a few times, but the hour and the subject matter -- together with personal considerations which I do not care to discuss -- speedily proved terminal. We had small classes in those days, one's identity was known to the instructor, and, accordingly, Walter sought me out individually with the warning that a student who did not attend class could not possibly earn a respectable grade on the final exam. This seemed to me arrogant, presumptuous and in my case directly contrary to experience. I took his warning as a challenge and a dare. I did, however, put some extra effort into exam preparation and felt confident that I would do very well under a blind (i.e., non-vindictive) grading system.

The grade I received was a low C -- 70 is the number I seem to recall (distinctly) -- and thus was answered for me the elemental question "Who gets what?" though not quite in the way I expected. Years have passed, but I have not forgotten. Indeed, looking back on my own career as an academic -- largely devoted to the study of federal taxation, with a minor in corporate finance -- it occurs to me that what I have really been trying to do -- everything else aside -- is to up that miserable grade.

Talk about influence.

-- Marvin A. Chirelstein

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Today / 12.11.06

Today in History That Doesn't Seem To Have Affected Many People (1971) - The Libertarian Party of the United States is formed.

Posted by PG at 05:50 PM | Comments (0) | TrackBack

December 07, 2006

Won't Get Anna Nicole Smith'd Again

Actually this case is quite dissimilar from the dispute over the Marshall estate. Rather than a fight between the survivors of a dead oilman, it's a divorce battle between two spouses whose wealth derives from information. However, the money involved -- the husband is a billionaire, undisputed child support for the one minor living with the wife is $354,000 per year -- and the underlying legal problem of conflicting Texas and California courts reminded me of Anna Nicole Smith's Supreme Court case. The civil procedure in the divorce case is more fun, though:

In her legal brief, Suzanne said she was surprised in July 2005 when David lured her out of the family's Gulfstream jet when it landed in Houston for a stopover on the way to Europe. He said he wanted to talk about some serious issues regarding the children; once outside the plane he had her served with divorce papers. Days later she filed her own petition for divorce in California, where she might expect a higher and longer-lasting alimony judgment. ... A uniform statute enacted by all states in the mid-1990s at the insistence of Congress was supposed to prevent such interstate disputes. It places jurisdiction in the state where the divorce was first filed unless another state is the home state of the child.
The wife is represented by the former chief justice of the Texas Supreme Court, in his first appearance before that tribunal since he resigned in September 2004. A great moment in original intent:The opposing attorney cited an official comment by family law specialists who drafted the uniform statute, which comment she claims is considered part of the law, that "encourages courts in competing states to cooperate and even defer to the other, depending on circumstances."

Speaking of Smith, with a new crop of law students freshly certified as ethical, can anyone tell me why Howard K. Stern, Smith's attorney and allegedly her baby's daddy, hasn't been brought before his state bar for violating one of the easiest-to-remember rules for the MPRE?

Posted by PG at 05:47 PM | Comments (2) | TrackBack

December 06, 2006

Spam: the Real Danger of Gun Registration

When David Kopel, Eugene Volokh and other opponents of government regulation and record-keeping of gun ownership talk about why it's A Bad Thing, they frequently imply that someday the government will take your guns away, and having a file of people with permits makes it that much easier for them to come for the last defenders of the 2nd Amendment. (I know the idea is that the guns will help defend our other freedoms as well, but given that I never heard of a red-blooded American raising his gun to keep the government from trucking his Japanese neighbors into internment camps or his Muslim neighbors into mass detentions -- or even his allegedly "feebleminded" nieghbor to the sterilization room -- the freedom-defending rationale for gun ownership seems to rely on self-interestedly carrying a firearm to defend one's own rights, rather than counting on one's fellow citizens' altruistic love for another's freedom. All the people who think there's going to be a great loss of their rights to criticize the Bush Administration, or even to live as a Muslim in the U.S., should arm themselves against the coming tyranny, as the majority of those already in possession of weapons probably won't do it for them. Racist cops tasering you at the school library? Whip out your pistol!)

What the 2nd Amendment stalwarts don't tell you is that even in benighted blue states like New York, the government is actually there to defend at least one of gun owners' rights: the right to be free of annoying, unsolicited fundraising letters for gun clubs (albeit made possible only by the government's having the desired mailling list in the first place). In Federation of New York State Rifle and Pistol Clubs, Inc., v. New York City Police Department, 73 N.Y.2d 92 (Ct of Appeals 1989), the NYPD successfully fought off a Freedom of Information request for the names and addresses of persons holding rifle or shotgun permits, because the lists would be used for commercial or fund-raising purposes and thus the release would be an unwarranted invasion of personal privacy. Specifically, the petitioner sought the information in order to circulate information about itself that included a detachable membership application, and to obtain membership dues. I suppose inasmuch as the Gun Clubs were going to use the dues to lobby the state legislature, those refusing membership might be called free-riders, but until gun-owners form a union, free-riding appears to be their right as well.

Posted by PG at 08:40 PM | Comments (0) | TrackBack

December 03, 2006

Now I Want to Take Negotiations

If you haven't seen it yet, this video really is funny. Despite the early '90s culture wars and claims by conservatives that only crazy man-hating feminazis would advocate written sexual consent forms, the video apparently drew its inspiration from "loveologist" Dr. Ada Cadell, who in the wake of the Kobe Bryant rape recommends such forms be carried by "Superstar athletes, actors, rock stars, politicians, even entrepreneurs [who] have groupies that will do just about anything to have sex with them." Thankfully, Thank You for Smoking director Jason Reitman put a less distasteful spin on the concept.

Posted by PG at 05:49 PM | Comments (6) | TrackBack

December 02, 2006

That's All I Need (to Replace Examsoft)

Inspired by Radar Online, the New York Times reports that some students at Columbia’s Graduate School of Journalism may have cheated on their open-book, take-home pass-fail exam in the ethics course “Critical Issues in Journalism.” Student Sabbati Zevi discusses in his blog and the J-School Tabloid is posting. Someone purporting to be a student in the class is anonymously blogging about it, as are many others less informed. I don't expect everyone commenting to have firsthand experience, but the number of people moronically misreading Vice-Dean KlatellLemann's comparison to law school is staggering. He said, “Our students are strivers. But they are striving to get good clips. It is not like law school, where fine differences in points make all the difference in the world.” Typical ignorant response from conservative bloggers about what the statement meant: "Nah, don't sweat the fine points. Fast and loose. Fake but accurate. It is not like law school."

KlatellLemann was referring to the fact that the J-school is predominately pass-fail, so graduates won't be judged by prospective employers by their grades but instead by their portfolio of work. This is different from the law school, where nearly all courses are graded; the only pass-fail course for first-year students is Legal Writing & Research/ Moot Court, and even that has introduced a "pass, high pass" system in the last year. Law students fight tooth and nail for grades because they determine whether they will make law review and get clerkships, and where they can work. "Fine differences in points" make the difference between the flagship journal and a specialty one; between a state district court and a shot at the Supreme; between a personal-injury firm that advertises on the subway and Cravath. These conservative bloggers apparently don't grasp that KlatellLemann was talking about grades, not the substance of the work done at each school or in each profession*.

In the interests of professionalism, I'm not going to discuss what happened, except to hope for selfish reasons that no cheating occurred, and to be rudely grateful that it's the ethics class that's considered the most wasted. Instead, I want to talk about testing technology, a subject that's usually Armen's beat.

The J-schoolers took their exam by logging in to a website, which gave them 90 minutes to take the exam, and they could take it at any point during a 36 hour period. They were honor-bound not to discuss the exam with other students during this period so questions would remain a surprise and could not be specifically prepped. This seems to me a system far superior to the law school's, wherein we have to take exams either at the law school on software that essentially works by crashing our operating system so we're unable to access it, or giving us a span of time for "take home" exams, the totality which span may be necessary in order to do well on the exam. For example, if a professor gives a 24 hour take home exam, a substantial number of students actually will spend 24 hours writing it. Because grades are on a curve, the existence of such lunatics presses the whole class into similar behavior.

I'd much prefer to replace ExamSoft with a log-in to a website. It will avoid the MS Word problem mentioned in Armen's second post by commenter Mark Lyon: "We started using word files, burned to CD, and then printed or turned in. Then we got ExamSoft. The main reason? One of the 1L's used word's 'auto replace' feature to make some cryptic string like /~torts~battery~! turn into a long, wordy discussion of battery. From what I understand, they used it for almost every class, making it possible to pre-write much of the work they expected to see on the exam." It won't hurt our laptops, many of which totter on the edge of death anyway, and it will allow benighted Mac users, whose OS isn't ExamSoft-compatible, to use their own computers instead of handwriting or begging the loan of a PC. Students who don't have any access to a laptop can login through a desktop, whether their own or in a school computer lab.

Website login also would permit people to answer take-home exams during a 24 hour slot of their choosing. The probability that students would cheat by telling others what's on the exam is a small one, given that it would require a student to be so altruistic that he would endanger his own place on the curve by helping another student in the same class achieve a better grade. This is a school where some students have to swear an oath to their study group not to share any outlines produced therein with students outside the tribe. Not everyone is like that; I've had classmates offer to share their notes with me when I've missed class or not had my laptop, but they all were Mormons and I expect the lack of caffeine has allowed them to stay uncommonly sane. I feel safe in premising an exam system on our collective enlightened self-interest.

* To see someone playing fast and loose at law school, check out my Stone brief's string-cite, in which I imply that the 11th Circuit's Bledsoe holding is supported by courts that in actuality have not repudiated the DOJ's Title II guidelines but haven't necessarily embraced them. If the 9th Circuit's more conservative side (the Zimmerman majority) wants to claim those courts hold that position, so it can feel extra cool in striking the opposite pose, who am I to disagree?

Posted by PG at 05:46 PM | Comments (6) | TrackBack

December 01, 2006

Catholics and Consequences

Prof. Bainbridge points to his latest TCS article, in which he criticizes the Nuffield Council on Bioethics for its recommendations on critical care in fetal and neo-natal medicine, and describes bishops who agree with the Council as "[breaking] with 2000-plus years of Judeo-Christian ethics." (His sole citation to Jewish law is a Wikipedia entry that devotes a sentence to Jewish practice.) Bainbridge is a Catholic and presumably has much better knowledge of his religion's teachings than I. My knowledge of Catholic doctrine is derived from secular sources -- i.e., non-clergy bioethicists -- but I was under the impression that Catholicism a) distinguishes between ordinary care such as food and water, and extraordinary care such ventilators and surgery; and b) evaluates "extraordinary care" based partly on how much good it is likely to do compared to how much harm. The Catholic Catechism says, "Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of 'over-zealous' treatment." (emphasis added)

The Nuffield Council says, "We conclude that oral nutrition and hydration should only be withheld from a baby when it is clear that providing it causes discomfort and pain, such as when a baby has little functioning bowel due to disease or when death is imminent. The decision should only be taken after careful assessment and as part of a planned programme of palliative care designed to minimise suffering and make the baby as comfortable as possible."

Am I misunderstanding Catholic doctrine, or is there something in the Council's recommendation that violates it as I have stated it above?

Moreover, there is a massive difference between being "left to die" and receiving only palliative care that reduces pain and does not prolong life. Bainbridge claims, "Although most infants allowed to die per the Nuffield Council's recommendations likely will do so in a hospital setting, there is little ethical difference between allowing a child to expire from denial of nourishment or other forms of care, and allowing a child to die of exposure. Indeed, in both cases, hunger or thirst will be the agent of death."

There is a tremendous ethical difference between the two. By Bainbridge's lights, there is no ethical difference between Christian Scientist parents who spend 24 hours a day at their sick child's bedside, praying and keeping her as comfortable as possible, and a father who leaves his sick child at home to suffer while he goes out to get high. Bainbridge is taking an astonishingly consequentialist view for a religious person; non-utilitarian ethics usually give credit for good intentions.

Indeed, even the consequences for the person most concerned, i.e. the baby who dies, are much better under the Council's guidelines than in Bainbridge's exposure comparison. A baby who starves or dehydrates to death -- something that will not occur under the Council guidelines anyway, unless the food or water itself is causing pain -- while being given sedated so she is unconscious of pain, is being treated far more ethically than a baby who is left to feel every twinge of hunger and to cry futilely because of thirst.

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