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Today is the 60th anniversary of the 228 Incident, in which the pistol-whipping of an elderly woman who refused to relinquish her black market cigarettes ended in the death of over ten thousand native Taiwanese civilians. |
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Today is the 60th anniversary of the 228 Incident, in which the pistol-whipping of an elderly woman who refused to relinquish her black market cigarettes ended in the death of over ten thousand native Taiwanese civilians. |
When I heard the story yesterday about the Gore family's high use of energy at the Nashville house where Al and Tipper work, the only part that really surprised me was that the conservative group that publicized the Gores' utility bills had been able to obtain that information. Getting monetary information with names attached, instead of anonymized aggregates, is generally rather difficult outside the area of political donations and spending. I can see why transparent elections are sufficiently desirable that the privacy of donors is outweighed, but I'm not immediately understanding the public interest that justifies pulling individuals' utility bills. Utilities are a mix of public and private, but that doesn't make them subject to identifying FOIA requests; the IRS is a wholly public agency, and I can't just ask them to give me my Corporations prof's tax data.
Maybe someone in the Gore household is burning a lot of energy on criminal activity, like heat lamps for pot plants, or on legal activity that simply would be very embarrassing to disclose, like a plug-in vibrator. Maybe a random one-month bump in gas expenditure was due to the week when someone in the Gore home was trying to pull a Sylvia Plath. I am of course exaggerating the speculation one could sensibly make of a utility bill, but until I hear a reason why Consolidated Edison should be able to disclose my bills without my permission, I'm not going to look kindly upon such an intrusion. Had the Tennessee Center for Policy Research asked Gore to disclose the information himself, I would have thought him a real punk if he'd refused, but the Center's ability to obtain it without notice or consent troubles me.
Discerning exactly how they got it is a bit difficult: one news report says, "Johnson said his group got its figures from Nashville Electric Service. But company spokeswoman Laurie Parker said the utility never got a request from the policy center and never gave it any information"; another initially said, "This information is based on electrical consumption reports from Nashville Electric Service, which are public record" but subsequently was changed.
(I do love the headline here that refers to Gore's defense that his carbon credits balance out his expenditures to make him energy-neutral: "GORE: But He Bought An Indulgence At The Church Of Native Energy, So It's All Good.")
Today is the 60th anniversary of the 228 Incident, in which the pistol-whipping of an elderly woman who refused to relinquish her black market cigarettes ended in the death of over ten thousand native Taiwanese civilians.
One can't reasonably expect conservative street theater to conform any more closely to reality than liberal street theater does. At the Code Pink March 2003 anti-war protest, I was holding up a stick attached to a span of blue cloth that made me part of a river, so I'm certainly in no position to mock Young Republicans for their attempts to use metaphor to illustrate political views, particularly when I'm not exactly sure what a river had to do with an unnecessary war in the desert. Nonetheless, there's a certain childish charm in the river and the protestors who were leaping about me to represent the fish, that is decidedly lacking in conservative attempts to spark debate*. Take "Catch the Illegal Immigrant," which a NYTimes editorial describes as "one player poses as the immigrant, and everyone else tries to find that person. There's a prize, usually $200 or less, which is not much, but enough to celebrate the cheap exploitation of a fellow human."
Clearly the Times editorial board is a long way from their undergraduate days if they don't think $200 is a significant sum to a college student living on ramen. If there were a $200 prize in real life for reporting legal violations to the proper authorities, I'd be hanging out at the local chicken processing plant waiting to turn in the management for hiring people whom they reasonably knew not to be authorized to work in the U.S. I'd get $200 and a critical legal studies-style "this was my experience busting people for breaking labor law" article out of it.
As you might be able to tell, what irks me about the conservative game is not precisely what irks the Times. Though their editorial predictably concludes, "Educators should teach the game players about the real world," I don't think shutting down "Catch the Illegal Immigrant" in itself would be very effective in such a teaching moment. I'd much rather layer the game than protest it: add in H2 visas, Tyson's Chicken, southern farmowners bitching about their unpicked crops because of the recent crackdowns, etc. Games are a perfectly valid way to educate people. The problem with "Catch the Illegal Immigrant" is that it is simplistic to the point of being moronic, not that it was the brainchild of a Republican National Committee intern; whether there is a connection between the two, I shall leave to the individual to judge. In real life, the money is to be made in fining employers, not in deporting illegal immigrants. Indeed, the deportation process is rather expensive, and not simply because of the due process requirements for which Republicans have as much patience as they ever do (i.e. very little when it involves the life or liberty of people who have broken a rule, very much when it involves property). Every illegal immigrant who is plucked out of America may have citizen offspring for whom the government must find foster care, and a job for which a new worker must be trained.
Sadly, one cannot expect much in the way of reality from street theater, or of complexity from Young Republicans, particularly if the complexity would target people with money and power rather than those without it. And so the conservatives will play their games, the liberals will joylessly protest them, and I'll be disgruntled that this happens at NYU but not Columbia.
* Hei Lun said of the marriage-only-for-the-childbearing initiative in Washington State, "This is like the conservative bake sale, except that that was a one-joke stunt that didn't harm or inconvience anybody whereas this has the potential to drag on for months and involves the state." I took issue with his analogy:
I'm confused as to how this is like the conservative bake sale, given that the people who are putting forward this bit of political theater are saying "we are LIKE the people who feel insulted by this," whereas conservative bake sales implying that African American students are unworthy of admission to the college usually are staffed by non-blacks. This is a significant difference: gay people are saying "Hey, our rights are being denied supposedly on the basis that we don't procreate together; how would you feel if your rights were denied on that basis?" It's quite different to try to tell a group of people that they actually are like you and therefore should take your side, than to tell a group of people that they are unlike and lesser than you.Another commenter said, "I think the point of affirmative action bake sales is that it is university admissions departments who are telling a group of people that they are unlike and lesser than the rest," to which I replied,
Do the bake sale organizers ask the people to whom they sell what their SAT scores and GPAs were, and whether their parents are wealthy donors to the university, or do they assume based on skin color that all the black students got in on affirmative action and all white students got in on merit? (And that Asian students got in on overwhelming mindbending awesomeness.)Hei Lun then said, "PG, the analogy is of an interest group taking their opponents' stated position to its absurd extreme to show how wrong it is." I clarified,
I understand why you made the analogy; I'm pointing out how these would differ in being "counterproductive." (Well, I suppose if you're the conservative group and you don't worry about getting black students on your side, it's not counterproductive.)Childless straights are sought as the allies of gays in the fight against a procreation-centric framing of marriage; gay people are saying "Look, if this is what gives people the right to marriage, you're in trouble too." There's no similar strategic move with the affirmative action bake sales; they are intended to be a metaphor of college admissions, one in which all blacks bring less value than all whites. Unless the bake sales are meant to make explicit to black students "As long as there's affirmative action, all of us (white students) view all of your (black students') accomplishments with suspicion," and thus get black students to oppose affirmative action as being against their own interests, they are not bringing the black students to the conservative side. But even then, it doesn't exactly put the conservative students and African Americans on the same side against a third party, as the claimed similarity between gays and childless straights vis a vis procreation-centric marriage proponents does.
I never consciously realized until tonight, when I was reading yet another derisive comment about judges that mentioned their robes, just how important those garments seem to be in the minds of the judiciary's critics. It's a bipartisan tendency, too: Cass Sunstein scorns rightwing Radicals in Robes; Nelson Lund fears the Politicians in Robes. Maybe it's because the robes we keep on hand for mock trial judges are so crappy, but I don't think of robes as vastly dignifying. I had to tote back one that was borrowed from the dean's office, and though it was warm, it also had an odor of perspiration rather at odds with Olympian remove.
The Daily Show team's depiction of the naked Supreme Court offers the reader the opportunity to "Restore their dignity by matching each justice with his or her respective robe." Aside from Rehnquist's gold band, O'Connor's starched ruff and Ginsburg's antique kerchief, the robes are identical, whereas the justices' pasted bodies are as varied as their jurisprudence. Perhaps those for whom the robe, with its connections to the ecclesiastical courts, canon law and religious authority, creates an aura of undeserved prestige for judges, would be better off simply thinking of these judges in the nude. It's page 99 of America (the Book), which picture predates the advent of Chief Justice John Roberts, who has said, "Judges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision."
The exchange below between PG and Amber Taylor, particularly Amber's reaction to the Posner opinion, is the inspiration for this week's Quotent Quotable. There's something about us bloggers that creates this need to gripe. Maybe it's the job description, maybe it's the personalities attracted to the job description. But we sure like to gripe.
Homer, at first, took the opposite approach when he became a food critic. But after the newspaper's staff critics point out that Homer's lowest rating went to a Pizza he found under the couch with Hot Wheels on it, Homer changes his tune.
Marge: Who wants pork chops?!
Homer: [carefully tasting the food] Sorry Marge, I'm afraid this gets my lowest rating ever. Seven thumbs up.
Marge: You always liked my pork chops.
Homer: Marge, I'm sorry, but your cooking's only got two moves, Shake and Bake.
Marge: You like Shake n' Bake. You used to put it in your coffee.
Homer: People change, Marge. My palate has grown more sophisticated.
Marge: Oh yeah, what's a palate?
Homer: Oh ... it's a ... special time in a boys life when ... got to go! [rushes out]
Today in History (1994) - U.S.-born Dr. Baruch Goldstein kills 29 Palestinian Muslims and injures 125 in the Cave of the Patriarchs massacre. He is killed by the survivors; the organization to whom he belonged is outlawed and the victims of the attack compensated by the Israeli government.
The remarks below about Posner's decision in the Brandt case have been rebutted in a post titled, "Now I am ticked off." Amber Taylor says,
I used to enjoy snarky, nasty judicial opinions like this. But the judge I clerked for was a true gentleman, and he always said that each case is important to someone, and thus we should keep our snark in check and give a reasoned and fair account in our opinions. This case was important to the kids who filed it (who are probably brats), but it's also going to be important to less obnoxious students who want to express a more sympathetic message but are foiled by autocratic administrators. Contra PG, students do sometimes have strong political views.The idea that Posner's opinion lacked reason or that its account of the facts was unfair to the plaintiffs is simply not one with which I can agree. The gentlemanliness of Judge Richard Posner, or of any person who writes "snarky, nasty judicial opinions," is not a subject I feel capable of debating, particularly when that judge is faced with plaintiffs who demonstrated how important the case was to them by demanding bizarre injunctions against the publicizing of their misbehavior, even as they pursued a lawsuit using their real names and talked to reporters. Moreover, I specifically said that Tshirts stating a political message that administrators could not reasonably believe would be found disruptive (such as "Amend the 12th Amendment!") have a First Amendment protection with no counterbalancing weight in favor of Order.
In Brandt's case, when an outside body, a “Crisis Intervention Team,” was brought in by the school to evaluate the disruptive effect of the Tshirts, that body did not find them unduly so and the restriction on their wearing was lifted. Plaintiff Brandt's younger sister could wear the Tshirt to her heart's content. C.f. Tinker, in which the students were suspended and no attempt was made to weigh competing interests: "Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption." The Court's opinion emphasizes the extent to which the Des Moines school specifically discriminated against the anti-war viewpoint, while permitting the Nazi Iron Cross. Had the Chicago Public Schools Uniform Discipline Code's prohibition on clothing with "inappropriate words or slogans" been interpreted only to prohibit pro-giftie speech and not Tshirts that said "Porn Star" or "Talk Nerdy To Me," I would have more sympathy and Posner probably would as well.
My disagreement with Amber may come down partly to different ideas of the purposes of elementary and secondary schools. She may have attended schools where worthwhile ideas from one's classmates were more common than useless havoc caused by same. Having gotten a mediocre formal education in a school where the cop was armed and fights were occasionally serious enough to require an ambulance, I see the function of a school as a safe, orderly place for book learnin'. Learnin' should extend beyond the three Rs to art, music, health, etc., but the "personal intercommunication among the students" that Tinker identifies as "an important part of the educational process" is not the primary goal of establishing and funding public schools. We hire teachers to teach the kids, not just have the kids teach each other by hanging out, and to my knowledge no public school is required to have time for "personal intercommunication among the students." Students who want to have "personal intercommunication" are unrestricted from doing so outside school, and there's little reason to think the plaintiffs' parents would have limited their offspring's speech -- more likely facilitated it.
Amber writes as though school is 24 hours a day and therefore any speech regulation in that particular venue shuts down one's entire First Amendment life. I would object to state-sponsored speech restrictions in an environment that was the totality of one's existence, but happily school is not such. Much as adult life is concentrated in the workplace yet speech can be regulated there to ensure that the primary purpose of the workplace is met, minors' life is concentrated in school yet speech can be regulated there to ensure that the primary purpose of education is met. I dislike zero tolerance style policies because they often end up excluding students from schooling, but I have no problem with policies that may not fulfill Amber's dream "that in this day and age students would be encouraged to question the authorities who administer elections," when the questioning is through means that may be disruptive to the school's mission of formal education. This is in contrast to a democratic society as a whole, which has no such mission. As Posner notes,
In any event, it was not the protest as such that was forbidden, but merely a particular means of protest. The gifties were free to protest in more conventional, less potentially disruptive, ways than by the wearing of the Brandt T-shirt. They did so -- they petitioned the principal and made a presentation to the Local School Council at the principal’s urging and were not punished for doing so. Their parents amplified the gifties’ voices of protest. With many routes of communication open to the gifties, the closing of the T-shirt route inflicted the most minimal of possible injuries, if injury at all (as we doubt), to the First Amendment.What Amber calls "[t]he wannabe-Übermenschen's demand for electoral transparency[,] a reasonable request," was met with avenues for actually affecting the Tshirt elections process. If I wear a "2000 Stolen" Tshirt to the polls, it may be disruptive, but it also may incite other voters to demand change. If I wear a "Gifties 2003" Tshirt to school, it may be disruptive and it will have no effect on the supposedly protested Tshirt election process because even if the other students happened to agree, they don't decide the rules either, because school is not a democracy. If petitioning the sources of power and authority doesn't get you what you want, appealing to the 'tards ain't gonna do it either.
I don't find the plaintiffs to be elitist because they are "gifties" -- as my earlier post noted, I was a GT student who self-segregated from the regular kids too, and I don't feel shame or guilt about that; I likely would have bored them. The charge of elitism is directed at the plaintiffs for their belief that the school is supposed to revolve around them: non-gifties are "'tards"; the class Tshirt should represent the minority gifties rather than the class as a whole; the school election rules should have allowed their groupthink bloc-voting to work; the hallways exist for them to express their ire that it didn't; they shouldn't have to pay the costs of litigation they began.
Despite Amber's outrage, she never does explain what is the harm to the students that justifies this litigation and makes baseless Posner's annoyance, and her claim that it will be important to other students whose more sympathetic message will be "foiled by autocratic administrators" seems improbable in light of existing Supreme Court precedent. The rule derived from Tinker, Southworth, et al. is that public school administrators can impinge on students' speech rights in a way that they couldn't do if they were a legislature, so long as the regulation is not discriminatory among viewpoints. (There's no suggestion that had the inappropriate word "gifties" been left off Brandt's redesign, the Tshirt would have been problematic, given that it was acceptable as a submission to the contest.) If public schools are supposed to make citizens and not just literate persons of us, I suspect this process has been highly educational for any of the gifties open-minded enough to recognize the possibility of their not being the alpha and omega.
Of course, the Wikipedians have already responded to the NYTimes article about Middlebury College's history department's banning citation of the online encyclopedia. Though the article concludes, "And yes, back at Wikipedia, the Jesuits are still credited as supporting the Shimabara Rebellion," within hours of the article's online publication, someone had added "citation needed," and by the time I read the article today, another person commented,
The offending sentence from the article was (now deleted): "... the rebels themselves were backed by the foreign power of the Jesuits and the Roman Catholic Church." which is in fact accurate, but ambiguous. The students at Middlebury took it to mean physical backing (troops, supplies, money, etc..) which is wrong - when the original author (I assume) meant it to mean the Jesuits were "rooting" for the rebels to win (obviously). Just a case of poor writing on Wikipedia, but the facts were not wrong. With that said I support Prof. Neil Waters in not allowing Wikipedia, or any encyclopedia, to be cited by history students - professional historians don't cite encyclopedias.The "don't cite Wikipedia because you shouldn't cite encyclopedias at all" line is the official one. The NYT article quotes Wikipedia co-founder Jimbo Wales as saying, “Basically, they are recommending exactly what we suggested -- students shouldn’t be citing encyclopedias. I would hope they wouldn’t be citing Encyclopaedia Britannica, either." But while citing encyclopedia entries on a topic of which one is supposed to be demonstrating expertise is obviously bad work, what about the citation to Wikipedia for simple facts that are not in themselves the point of one's writing?
A quick Lexis search shows the online encyclopedia to have been mentioned 1885 times in decisions, Supreme Court briefs and legal periodicals. Wikipedia has been cited in everything from a recent Posner opinion giving background about the defendant ("Radomski is a former trainer of the Polish boxer Andrew Golota -- the world's most colorful boxer. See http://en.wikipedia.org/ wiki/Andrew_Golota") to an amicus brief in the Supreme Court Seattle school assignment case* that cites Wikipedia multiple times on controversial subjects such as race, anti-semitism and apartheid, and defends it as "[a] source arguably more accurate than Encyclopedia Britannica. See www.nature.com/news/2005/051212/full/438900a.html." The Nature piece does acknowledge, however, that the quality of writing in Wikipedia is worse than that in Britannica, and this amateur style and lack of editing in the former appears, in the case of the Jesuits in the Shimabara Rebellion, to have caused there to be a sentence easily misinterpreted in such a way as to create factual error.
The Posner citation is harmless; even if the Andrew Golota entry is full of errors, it's an amusing parenthetical. The Seattle amicus brief is far more problematic, given that its arguments rest on a discussion of race and discrimination, but Wikipedia remains in the footnotes. In the case of Gilroy v. Letterman, I fear that if the plaintiff cited Wikipedia accurately, the online encyclopedia provides false hope to litigious lunatics: "UNPOPULAR SUBJECTS: THE BASIS COURTS MAY USE FOR DISMISSAL: Wikipedia encyclopedia stated that 'unpopular subject(s)' are the real reason that courts Dismiss cases when they provide 'Delusional' as their reason for dismissal."
* This brief is an astonishing piece of work, written by Timothy Don-Hugh Mak. An Australian with a Columbia LLM (!), he concerns himself with the litigation because his niece and nephew are American citizens whom he fears will be discriminated against because they are Asian, it claims that Mak "was the first person to question the legality of race-based affirmative action programs in Law Schools in the United States; and the first person to point out the deleterious effects of these policies on Asian students in particular"; that Asians are systematically disadvantaged by affirmative action programs; that the black and Latino students admitted also are not truly advantaged due to high dropout rates; and that such programs exist for the benefit of the white Establishment.
Based on this detailed statistical analysis and research, the main effect of affirmative action is simply to allow the not-particularly gifted offspring of the white Establishment to progress through selective high schools and universities unmolested by "unseemly" numbers of highly competitive Asian-American students.See, Asians are better at everything, including conspiracy theories. Beat that, Black Panthers!
The equation is simple: Replace hard-working ("nerdy"?) Asian-Americans with under-prepared and under-qualified minorities, thus lowering the grade averages required for the relative "success" of the "established" student population.
Thus, in one elegant move, affirmative action makes it easier for the offspring of the white Establishment to score reasonable grades and simultaneously eases their misplaced guilt over the abject poverty and disadvantage of blacks and Hispanics in their midst.
UPDATE: Follow-up.
Amber Taylor criticizes Judge Richard Posner's opinion in Brandt v. Board of Education as
dangerously elitist in its refusal to protect speech that is childish or uneloquent. ... Similarly, his brusque assertions about the existence of other avenues of protest, such as petitions to the principal and school council, ignore the importance of being able to communicate the message of a protest to different audiences; expressing something to one's schoolmates is not the same as expressing something to a school official. ... I wonder what else could be considered an "inappropriate slogan" in public schools: anti-war messages? anti-Bush messages? anti-homosexuality messages in a school with gay students? Posner's ruling tars all such expression with a pretty broad brush. It was apparently more important for the judge to snark at the students than it was for him to respect the rights at issue.The plaintiffs are a group of "gifted" students who referred to themselves as "gifties," in opposition to the non-honors students with whom they share a Chicago public school and whom the "gifties" called "'tards"; the named plaintiff's mother is lead counsel. One of Amber's commenters asks, "Was it really necessary to continue using "gifties" and "tards" throughout the opinion? I mean, really." Personally, I find it ironic that Amber calls Posner the elitist in this dispute. Whatever snarkiness she detects in this opinion probably derives not from his scorn for Tshirts as speech, but for these "giftie" brats, and he uses their childish language to emphasize the conflicts existing at the school that were in the minds of administrators in their decision-making.
But the importance of context cuts both ways. The protesters in this case are school children. They are privileged schoolchildren in a school that contains a majority of nonprivileged children. They insist that unless their T-shirt is adopted by the entire eighth grade, they will as it were secede, and flaunt their own T-shirt. They do not recognize the principal’s authority or the legitimacy of the school’s procedures for determining the winner of contests.In other words, the gifties were thinking There's no way another Tshirt could be better than ours! And the class Tshirt should represent the gifties, not the class generally! A parent who supports her child in referring to others as "'tards" needs to go back to kindergarten herself. I was in all the gifted/ honors/ Advanced Placement classes in my underperforming public school -- so backwards that I was the first person there to take the Calculus AP exam -- but I certainly never referred to people outside those classes as "'tards" and neither did anyone I knew. Maybe it's just something about being in a non-magnet Texas school, but we were well aware that many of the non-honors students were much cooler than we were, especially the athletes. (Another reason not to call the non-honors students "'tards" -- they tended to be bigger than us, too.)
Inasmuch as the gifties were trying to express something to their 'tard schoolmates, that was precisely what the school administrators were worried about: that the gifties' expression would incite fights and disrupt order. The gifties were free to wear their Tshirts outside school, in social interactions that most likely were limited to one another and did not include the 'tards. (I can't deprecate such self-segregation too much, as my high school graduation party invitation list almost matched the National Honor Society membership.) The eventually-lifted prohibition was on their engaging in speech that teachers feared would be taken personally and angrily by other students. Pro/anti-war, pro/anti-Bush, in eighth grade even pro/anti-choice messages all are suitable political speech for school because children mostly don't care enough about political issues to become disruptive over them. Direct insults, whether of another student's race, religion, sexual orientation or educational status, on the other hand, are far more likely to create problems for administrators who are harried enough in just trying to get these damn kids to graduate so they can start with a new bunch of hellions.
Perhaps tutoring just has given me more fellow-feeling with the teachers than with the students, but my sympathy is far more with those who have to educate than with the obstreperous adolescents too self-obsessed to recognize when their preferences may impede that objective. Nothing personal against the students at Beaubien Elementary; it's the nature of teenagers to be selfish and immature, which is why we don't have teenagers run the schools. And the necessity of order in schools, much like the necessity of order in public life, does not allow authorities to burden speech excessively. At the same time, the very existence of a non-school public life means that school restrictions inherently are far less onerous than general governmental restrictions. If I can wear my giftie shirt everywhere except school, I still can express my sentiments to my schoolmates, my neighbors and the public generally. I just don't have the specific academic venue as a stage for my speech. Admittedly Posner says,
The defendants also contend that there was a danger that the non-gifted children would be incensed by the gifties’ refusal to accept the result of the election, and violence might result; there apparently had been a shoving incident between a “gifty” and a “tard” a week before the gifties started wearing the Brandt T-shirt. But the evidence of tensions between the two groups of student was not developed, and so cannot be a ground for upholding the defendants’ actions.Nonetheless, that administrators reasonably had disruption as a concern is part of the rationale behind giving administrators discretion in the first place: "Prohibiting children from wearing to school clothing that contains 'inappropriate' words or slogans places appropriately broad limits on the school authorities’ exercise of discretion to maintain a proper atmosphere."
It's easy to say now that elementary and secondary school are a decade behind me, but I just don't see speech within those confines to be as vitally important as speech in public life generally. Moreover, Amber misses what Posner is really deriding: not the childishness of how the message was communicated, but the childishness of the message itself. Her reference to Tinker is inapposite because there the message was a quite serious political one, and Posner actually cites Tinker to support his argument that "clothing as such is not -- not normally at any rate -- constitutionally protected expression." He points out that the plaintiffs wisely are not asserting the T-shirt itself to be protected speech, only when the T-shirt is worn to protest the election for the official class Tshirt. "We must be precise about the right that the plaintiffs sought to vindicate by protesting. It is the right to an explanation by the school for how the election to pick an official eighth-grade T-shirt was conducted." The subject of protest probably would be an improperly content-based rationale for regulating protest, but it's a perfectly suitable explanation for the tone of Posner's opinion. Indeed, that tone was predictable from his question at oral argument: "'Why do people bring lawsuits for such trivialities?' Judge Richard Posner, a notoriously tough jurist, asked [lead counsel and named plaintiff's mother] Dymkar during a three-judge hearing of the U.S. Court of Appeals for the 7th Circuit Thursday. 'Have they been harmed, these Gifties?'"
Even as the administration funds a luxury bus for lobbying, the dean treads the standard discussion-is-great! line, and the professors take up Chief Justice Roberts's invitation to voice their disapproval, the Columbia OutLaws urge the practice I've been advocating since my first year and that was rejected by the Student Senate:
Dear Fellow Students,[Emphasis added.]We are all at law school for a reason. For some of us, it’s our first step toward becoming a partner at a prestigious law firm. For others, we’re on our way to a career in politics. Still others hope to serve the public interest. For some of us, our ambition has always been to serve our country as members of the armed forces. Like most of the students here, we excelled in college and are working hard in law school. To the military, however, our dedication does not matter. To the military, the gender of the person we love is a bar to effective representation of our country. To the military, who we are is incompatible with our desire to serve our country in a time of need.
Outlaws regrets that Columbia Law School has been economically coerced into allowing the military to recruit on campus in violation of the Law School’s anti-discrimination policy. The military’s “Don’t Ask, Don’t Tell” policy implies that gay people are less than, that they are an inferior class of individuals. Outlaws finds this stance intolerable.
Outlaws is committed to encouraging Congress to change its policy and lift the ban on openly gay service members. To that end, Outlaws is asking students who are interested in seeking employment with the Judge Advocate General to interview off-campus at one of the many recruiting stations throughout Manhattan (nearby locations are listed below). By taking this small action, students will be respecting the space created by Columbia Law School – a space where discrimination is unacceptable. If students refuse to participate in military interviews on campus, Columbia Law School will not be forced to violate its nondiscrimination policy and the rights of its gay students.
In response to the military’s presence on the Law School campus this Thursday February 22 and next Wednesday February 28, we would like to begin a dialogue with students who plan to interview off-campus to suggest ways in which you can make clear your disapproval of the “Don’t Ask, Don’t Tell” policy while still serving your country through JAG. Your decision to interview off-campus will not only represent your support for your colleagues, it will also add to a growing national desire to change this discriminatory policy.
Columbia Law School is a place where all students should feel respected and valued. The military’s “Don’t Ask, Don’t Tell” policy is an affront to that goal. We hope that you join Outlaws in our effort to make the military a place for everyone.
Sincerely,
Columbia Law School OutlawsNearby recruiting locations
HARLEM (Army and Air Force), 76 West 125th Street, New York, NY 10027, (212) 860-5084
LINCOLN CENTER (Army), 141 West 72nd Street, 2nd Floor, New York, NY 10023, (212) 787-0404
TIMES SQUARE (Army and Air Force), 200 West 43rd Street, New York, NY 10036, (212) 575-0450
Happy 275th birthday to George Washington, 75th to Ted Kennedy and 10th to Dolly. Although Washington and Dolly both are dead, recently he's gotten reframed, rediscovered and repossessed; the FDA declared milk and meat from clones to be safe; and Kennedy is in great power and spreads like the green bay tree.
UPDATE: Responses to Heart, including those she has censored from her blog, here.
I've never attended nor had much interest in attending the Michigan Womyn's Music Festival, though I've been aware of it since college when one of my queer friends went as a research project for her Anthropology honors thesis (or as she likes to put it, "I got the University of Virginia to pay for me to make out with girls for a week!"). I like women, I like music, but Michigan and mud do nothing for me. In observing the debate about whether the Festival should continue to bar women who were born with male genitalia, I'm always struck by how convinced the people who defend the Festival's discrimination against transsexuals are that women-born-women are the most powerless, underprivileged people possible in terms of gender. That attitude is well represented Festival founder and producer Lisa Vogel's statement, "Supporting womyn-born womyn space is no more inherently transphobic than supporting womyn of color space is racist."
So is supporting white-womyn-only space racist? Shouldn't every sub-group within the community have a room of her own? I doubt that the Festival would have a white-only tent, because the organizers recognize that being a white middle/upper-class woman still tends to be treated as the default woman's experience, so inevitably most of what is considered to be woman's experience at the Festival will be that. (For example, talk about Take Back the Night and how much it sucks not to be able to walk through a "bad neighborhood" tends to ignore the low-income women, often women of color, who live in that "bad neighborhood" -- it's represented as frightening foreign territory that must be occupied and civilized, never as one's own 'hood.) Therefore giving womyn of color a space to share their common experience makes sense.
In the same way, being a woman-born-woman also is the default woman's experience. I don't understand why women who have the privilege and power of social approval for their gender identity think they're being victimized by uppity transwomen who aren't respecting them. The transwomen are saying, "Ain't I a woman, even if my experiences don't fit into the default Woman's Experience?" Biscuit and others seem heavily invested in declaring that one cannot be a woman without having been born with a vagina, yet are unwilling to admit that this is a transphobic -- or for those who dislike the misuse of "phobic," a trans-denying -- attitude. They want to keep their queer friendly credentials even as they exclude the people who have been most hurt by the insistence that "masculine" people have XY chromosomes and "feminine" people have XX.
It's like a bad conservative joke about how a group has become so focused on its victim status that it can't recognize how other people might have it worse. The womyn-born-womyn go on about the male privilege that Male-to-Females have had, while ignoring that MTFs' refusals of male identity frequently mean that they can access the privileges of neither sex. (Yes, women do get some gender privileges, though they're mostly ones I don't want.) The refusal of these alleged feminists to recognize that having a penis can be a bad thing sometimes strikes me as the biggest threat to the feminist movement's continued viability, not only with regard to transfolk but also with regard to issues that impact men more damagingly than women, such as prison rape. Feminists should be the biggest experts on male prisoner-on-prisoner rape, because they can bring the insights of heterosexual sexual assault to bear on the problem, particularly the coercion-consent continuum negated by the Prison Rape Elimination Act's assumption that all homosexual sex in prison must be rape. Yet I fear that the widespread belief that feminists care solely about women-born-women prevents those analyzing men's problems from looking to feminists for help, because feminism so often is caricatured -- and thanks to people like Vogel, sometimes is accurately depicted -- as seeing only women as victims and men only as perpetrators.
It's one of those theories that makes sense at midnight when you've had five hours of sleep the night before.
Prof. E. Volokh praises the Center for Individual Rights for filing a class-action lawsuit against Virginia Commonwealth University and Dow Jones, the sponsor of nationwide Urban Journalism Workshops. After seeing an article advertising VCU's workshop --
Richmond Times Dispatch, Feb. 26, 2006-- Emily Smith was interested in applying. According to her attorney, Center for Individual Rights President Terence Pell, Smith didn't understand that race or ethnicity was part of the evaluation of applicants.
Summer workshop calling for applicants; High school students invited to try out for journalism seminar
The 22nd Urban Journalism Workshop, designed to help high school students of various racial and ethnic backgrounds improve their journalism skills, will be held June 18-30 in Richmond. ...
The student who demonstrates the best journalism skills - taking into account improvement, quality of work, enthusiasm and other factors - will receive a $1,000 scholarship from The Times-Dispatch that can be applied to his or her college education.
"The article said the workshop requested students from diverse racial and ethnic backgrounds," Pell said. "Diverse could mean anything.
"After talking with her parents, Emily didn't know what that meant," he said. "So they decided to apply anyway."
Pell said Smith had no reason to believe white students were not allowed. Smith also thought she might fit into the definition of a minority, either from being female or having muscular dystrophy.
Smith applied, was accepted, and then revealed in answer to a direct question that she was white, at which point she was told that she was ineligible for the program. CIR sued, VCU and Dow Jones have settled, and Smith will attend during the summer of 2007 rather than 2006. As part of the settlement, Dow Jones agreed not to consider race or ethnicity in the future, and has changed the wording on its site accordingly. Many of administrators of the programs apparently haven't been notified to do the same. The website for the workshop held at San Jose State still says, "Latino, African-American, Native-American and Asian American students are strongly encouraged to apply";
the one for NYU says it "is designed to encourage minority students to consider a career in journalism" and will admit "[t]wenty minority high school juniors and seniors";
the University of Kentucky still advertises last year's program: "This workshop is for students who will graduate in 2006, 2007 or 2008 and who are of African-American, Hispanic, Asian-American or Native American descent. ... The reporting focus for this workshop will be on sports, girls are encouraged to apply";
St. Thomas in Minnesota says, "The workshop is targeted at students of color in hopes of encouraging greater diversity in the profession."
The statement on the left sidebar of Seattle University's website is the most extensive. "The Journalism Summer Workshop seeks out talented high school students of color, interests them in the world of journalism, and establishes a pipeline as they go from high school to college. Why? There are too few professionals of color in journalism. The lack of diversity in news operations hampers the ability to be fair and accurate and to inform the public responsibly." The right sidebar includes lists of "Journalism of Color Associations" and "Ethnic Media" (where ethnic = en espanol).
CIR's complaint in the case argued that there was no "compelling reason to exclude individuals from the Workshop on the basis of race," and that even if there were a compelling reason, "the complete exclusion of applicants on the basis of race is not narrowly tailored to achieve that interest." This is Grutter/Gratz language. A racially diverse student body that would supply a racially diverse educated population for the military and private sector has been found to be a compelling state interest, and a "holistic" approach to such diversity was deemed acceptable by the Supreme Court. The settlement, however, precludes the Workshops from considering race even to the extent that Michigan Law School was approved in doing.
CIR doesn't seem to want any program that avowedly seeks to improve the representation of blacks, Latinos and Native Americans in higher education or in professional fields. Remember that one of the things colleges were told they should do instead of using race in admissions was to improve the academic credentials of the applicants they sought to admit. But now CIR is attacking that form of affirmative action -- outreach to improve the skills of underrepresented racial minorities -- as well. Pell says, "It's OK to target underrepresented people. You just can't do this based on race," but that presumably means that any program that considers race is subject to attack by CIR for unconstitutionality.
For example, a few years ago VCU started a partnership with five Historically Black Colleges and Universities (HBCU) to improve academic and research opportunities for minority undergraduate students and faculty. The goal is to "increase the number of minority health professionals and researchers nationwide, with the hope of promoting better health outcomes for underrepresented minorities... there is a significant lack of racial diversity in health care policy, administration, researchers and health practitioners."
The press release is awash in language about opportunities given on the basis of race, and should be a fertile hunting ground for CIR in new litigation: "In the past three years, UNMC [University of Nebraska Medical College] has provided summer research experience for 40 minority undergraduate students, 26 of whom are from HBCUs. Twenty-two of these students were awarded NIH minority undergraduate stipends."
Yup, this flagrant racism and reverse discrimination victimizing white students is perpetrated even by the federal government. Why are VCU and UNMC singling out HBCUs for partnership? What about the academic and research opportunities that white students and faculty need? Why isn't VCU looking to work with schools that are mostly white instead of ones that are mostly black?
(For that last question I say only VCU because even in my ventriloquized outrage, it's hard to imagine the University of Nebraska can find schools substantially whiter than itself.)
Because of my belief that the state has enormous power to regulate consenting economic conduct due to reliance on the state for the upholding of contracts, but not so much power to regulate consenting non-economic conduct that does not rely on the state, I personally am convinced that the state has the right to prohibit the sale and purchase of sex toys (as well as the sale and purchase of sperm, eggs and surrogacy, though the right to create and raise a family is of longer standing than any sexual liberty). Even if you disagree with me -- as most people probably do -- there's still an obligation to get your facts right, which is why it makes me crazy when commentators misrepresent what actually happened in famous Supreme Court cases. Take Julian Sanchez: in criticizing the 11th Circuit's Valentine's Day decision to uphold an Alabama statute that prohibits commerce in sexual devices, he says "Two of the seminal privacy cases of the last century -- Griswold v. Connecticut and Eisenstadt v. Baird -- involved contraceptives, which were publicly sold and distributed commodities."
The Connecticut law challenged in Griswold dated from 1879 and prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception." In contrast, the Alabama law “It shall be unlawful for any person to knowingly distribute... any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.” If I'm bringing back '70s consciousness raising parties with the mirrors and I provide everyone a sex toy out of the goodness of my heart, I'm not violating the Alabama law, whereas if I'd been distributing free condoms to married couples in Connecticut, I was subject to arrest. The Massachusetts law in Eisenstadt prohibited the distribution of contraceptives by anyone except a doctor or pharmacist, as well as banning their distribution to unmarried women. William Baird was charged with a felony for distributing contraceptive foams during lectures on population control at Boston University -- not for selling them, but for giving them away. (Didn't want BU folks reproducing, I guess.)
As the 11th Circuit highlights, "The statute does not prohibit the use, possession, or gratuitous distribution of sexual devices," any more than an anti-prostitution law prohibits the gratuitous distribution of sex itself. It's not so much about being public as it is about being pecuniary. And it's about being pecuniary intrastate, because I would be surprised if Alabama made an effort to prosecute internet retailers who mail these tools of Satan in discreet brown boxes with AMAZON.COM stamped on them. For one thing, it might entail invading individuals' privacy in their internet use, mail and homes, whereas shutting down the local "novelties" shop is much easier, both practically and constitutionally. Concerns about "public morality" are cited, but I think the court's failure to mention, when saying "This statute targets commerce in sexual devices, an inherently public activity, whether it occurs on a street corner, in a shopping mall, or in a living room," the commerce that occurs in the ether of online communications may be significant.
Brett Marston saw the same sale of Chief Justice Warren Burger's library that ChaliceChick did, and picked up some of the books with lots of Burger's notes so they wouldn't get lost among various buyers. He's made the marginalia available to the rest of us with several posts: the first one here, and the rest collected here.
As an opponent of the U.S. invasion of Iraq, I ought to be sympathetic to those who are trying to avoid being part of it, but I find myself deeply exasperated by many of the men who are litigating the issue. As Armen said of one, "As much as I'd like to sympathize with 1LT Watada, I think he broke one of the most fundamental rules governing the armed services. No soldier should have to obey an immoral order, but the legality of the war, and by implication his deployment orders, do not constitute immoral orders. He broke the law, and he should be punished for it accordingly."
But today it's Army Specialist Agustķn Aguayo who is annoying me. He's a medic with the Army’s 1st Infantry Division -- one of the guys who patches up those injured in battle, including enemy POWs -- but he's claiming a conscientious objection and his lawyer says that his beliefs have "crystallized" since joining the military in 2002, such that he no longer can take a life. He served as a combat medic in Iraq from February 2004 to February 2005, having applied for conscientious objector status shortly before his deployment. He then refused to re-deploy, deserted in Germany and now is held in a U.S. military prison. His lawyer says, "'These cases are hard for people to believe because they involve a change in people's beliefs, but when you think about how old they were when they signed up, it's not that surprising at all." Aguayo was no teenage GED recruit, however; he's 35, married with adolescent children. In his statement to the U.S. Court of Appeals in D.C., Aguayo said,
By doing guard duty, appearing to be armed, even without bullets, I gave the false impression that I would kill if need be. I am not willing to live a lie to satisfy any deployment operation. By helping countless soldiers for “sick-call” as well as driving soldiers around on patrols I helped them get physically better and be able to go out and do the very thing I am against – kill. This is something my conscience will not allow me to do. Although I myself did not pull the trigger, I now realize that what I did as a non-combatant nonetheless supported and enabled these missions.I suppose at a certain point, the Bush Administration would pull out of Iraq if the war lacked sufficient medics, but absent a widespread refusal by such support staff, one less medic means there is just one less person to help care for the combatants who may not want to be there either, but who need medical care nonetheless. Their claims do not seem to trouble Aguayo.
After being labeld a "fair dancer...not good, but fair" by my EU Law professor, I decided this week to focus on more substantial events. This week has seen a flury of stories about the pending surge in Baghdad and Anbar. Sadr may not even be in Iraq. But at the same time some Sunnis are now cooperating with American and Iraqi forces. Though the Kurds and the Arabs may be going to blows fairly soon.
With all that, it's worth remembering that historically the Middle East hasn't really been a symbol of peace and tranquility. With that, I bring you this week's quote from Monty Python's Life of Brian. Although I hope the scene is familiar to all, the premise is that an underground organization called the People's Liberation Front of Judea is planning the ouster of Romans from the Holy Land. Their leader, Reg, has posed the question what have the Romans ever done for us:
Francis: Yeah, they certainly know how to keep order. Let's face it. They're the only ones who could in a place like this!
Commandos: Hehh, heh. Heh heh heh heh heh heh heh.
Reg: But apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, the fresh-water system, and public health, what have the Romans ever done for us?
Xerxes: Brought peace
Reg: Oh, pea-- Shut up!
Such is the world of the occupying force.
Despite the term's lack of literal accuracy, people who hate homosexuals continue to describe themselves as "homophobic."
One week after retired NBA player John Amaechi publically identified himself as gay, retired Heat guard Tim Hardaway said on a Miami radio show that he would not want to play with a gay man.I'm disappointed that Hardaway apologized, because you just don't hear from the open haters much anymore; even the religious conservatives who get on TV feel the need to couch their feelings as a desire to bring sinners to Jesus and vaginas. At least Hardaway didn't claim he was drunk, that his comment came from having been attacked by the group he now was attacking, or that he needed to go to homophobia rehab.
"You know, I hate gay people, so I let it be known," Hardaway said Wednesday, according to a transcript on the Miami Herald Web site. "I don't like gay people and I don't like to be around gay people. I am homophobic. I don't like it. It shouldn't be in the world or in the United States." Hardaway was a guest on the show and was asked at the end of the interview how he would handle having a gay teammate.
Amaechi also said he had not heard from a single former teammate or NBA player, but had been contacted by Boston Celtics coach Doc Rivers. He also urged heterosexual players to support the cause.Actually, when whites stood by blacks during the civil rights movement, some of them got murdered. The allies of minorities struggling for equality don't get beat up quite as badly as the people they're supporting, but they're rarely considered heroes until the cause has won.
"It's hard to get straight guys to step up," he said. "When men stood by women during the suffrage movement, they were called progressive and bold. When whites stood by blacks, they were heroes. But a straight guy standing up for a gay guy faces discrimination, and that's a big part of the battle we're fighting."
Columbia's method of coping with Rumsfeld v. FAIR, in which the Supreme Court unanimously upheld the Solomon Amendment's requirement that law schools accept military recruiters or forfeit federal funds for themselves and their associated universities, thus far consists of buses to D.C. and Boston and an e-mail from the dean. To wit:
As part of the Law School's Solomon Amendment amelioration efforts, Columbia is working with other area NYC law schools to participate in the Servicemembers Legal Defense Network Lobby Day on Monday March 26. There will be a bus leaving Fordham Law (140 West 62 Street) on Monday March 26 at 6am and returning to Fordham Law by 6pm. The luxury bus (air conditioned, reclining seats, toilet, sound system, dvd player) and participation in the day's activities is free of charge for Columbia students. ...The basic impulse behind this program is correct: the judiciary has proven unhelpful in remedying an ill, so all efforts will have to go toward legislative change. Of course, Congress has been getting lobbied for years to change its policy on homosexuals in the military, but the combination of a war in which we're lowering standards* and our allies have gay soldiers (the presence of women and homosexuals doesn't seem to have affected Israel's ability to whup ass), growing acceptance of homosexuality within the military as well as general society, and a newly Democratic Congress may make this the year that Don't Ask, Don't Tell is repealed, though at the moment only 112 representatives are co-sponsoring Meehan's Military Readiness Enhancement Act. I question how much undecided politicians will listen to lobbyists who are connected to neither the military nor the congressperson's district, and therefore whether such a lobbying effort is the best use of our resources.
As part of the Law School's continued Solomon Amendment amelioration efforts, we will be sponsoring a group of students to attend a conference on the United States military's Don't Ask Don't Tell policy. The conference is taking place at Harvard Law School on March 2nd and March 3rd.
Dean Schizer's message was as follows:
Over the next few weeks, the U.S. Army, U.S. Navy, and U.S. Air Force Judge Advocate General will conduct interviews at the Law School. As you know, Columbia has a long-standing nondiscrimination policy, under which employers who use Law School facilities in recruiting are asked to pledge that they will not discriminate based on numerous factors, including race, sex, religion, or sexual orientation.If the law school wants to embody and not just mouth its simultaneous support for the military and for gay students, encouraging students interested in JAG service to interview off campus still seems like the best option. Instead of creating tension between gay students unable to serve openly and their straight peers who would like to interview, or making the latter feel guilty, the law school could help both groups by making the off-campus interview option easier, and the on-campus interview an unused option. Thus the military technically is able to violate Columbia's nondiscrimination policy, but it will gain no recruits in doing so -- only at their own offices.The military's "Don't Ask, Don't Tell"¯ statute cuts against our strongly held conviction that employer hiring should be solely based on merit, and without regard to factors including race, sex, religion, and sexual orientation. The U.S. Army, U.S. Navy, and U.S. Air Force Judge Advocate General are being permitted to interview at the Law School pursuant to federal legislation known as the Solomon Amendment. Under that legislation, a law school's refusal to permit the military equal access to recruit on campus can result in the withholding of a wide range of federal funding to an entire university.
As a community, we are mindful of the military's status as an institution that protects the nation. We admire the courage and self-sacrifice of our troops and appreciate the particular contributions of military lawyers in an age when national security and personal liberty must be balanced in difficult new contexts. We believe strongly that those of our students who choose careers in the military can offer invaluable service to the nation. This very certitude renders it even more acutely troubling that our gay, lesbian and bisexual students are precluded from doing so, due to the "Don't Ask, Don't Tell" statute.
I encourage you, as future advocates, to participate in a robust, vibrant, public conversation around the issues raised by military recruiting. It is the role of a great law school -- including both its students and faculty -- to explore contemporary legal issues in an open, collegial, and thoughtful way. We urge you to examine this issue through the various ameliorative programs at the Law School and the greater university during the course of the semester and in conversations with your peers, professors, and administrators.
* Ironically, now that same-sex sexual activity no longer can be criminalized, the military is increasing the number of moral waivers it gives recruits with criminal records, including offenses like aggravated assault. I'm all in favor of letting people busted for possessing a bag of pot or running a red light join the military, but inviting folks who have previously shown violent tendencies is not a great way to avoid future Abu Ghraibs.
Maria Golia sees the sexy side of Islam:
Likewise, Hirsi Ali erroneously states that "there is a strict taboo in Muslim families on talking about birth control, abortion and sexual violence". Islam, like the Judaeo-Christian traditions, bans premarital sex, but it does not ban birth control. The Prophet Muhammad advocated coitus interruptus -- not the most effective means of family planning, but in keeping with Islam's encouragement of sexual activity as a source of marital pleasure, not solely of procreation. Egypt's state-sponsored birth control programmes began in the 1960s. In Iran, condoms manufactured in a government-operated facility are distributed through clinics and state-sponsored family planning centres. By contrast, the Vatican, which condemns "artificial" birth control, recently announced that its ban on condoms may be lifted -- for married couples where one partner is HIV-positive. Islam permits abortion only under certain circumstances, but several former Soviet countries with Muslim constituencies, as well as Tunisia and Turkey, allow it.I would point out to Italian-American Golia that merely because Islam permits birth control and some abortion does not mean that discussing such things is not taboo within families; people assume because of the Kama Sutra that Hinduism celebrates sexuality, but I don't recommend carrying that attitude into most temples, no matter what kind of art they may have.
I'm hesitant to discuss BigLaw economics again, as my last attempt showed that a) I don't know what I'm talking about; and b) one of my co-bloggers is much better at it. Nevertheless, after reading two posts at Above the Law this afternoon, I couldn't help but wonder: why are we so fixated on salary? That's not to say that bonuses don't get plenty of attention in their season, but it's in a quasi-salary fashion, i.e. focused on across-the-board rewards. Law firm bonuses are reported as a specific sum depending on grade, whereas investment bank bonuses were averaged because different people were given different amounts. And not giving bonuses at all doesn't seem to bring the shame that failing to match higher salaries does.
Consider a highly unscientific survey of law firm associates that revealed the majority would take a cut in pay proportional to the cut in the billable hours requirement. If firms paid in a more backward looking fashion, wouldn't it be easier for people to individualize the number of hours they worked? Those who want to go home and walk the dog themselves can have the hours and money appropriate to their preference, while those who want to pay someone else to walk the bitch can as well. Compensation also could be more closely commensurate with the quality and challenge of the work, which might force the firms to realize that paying so much for document review and due diligence work is silly.
Two obvious problems with this approach: people like to get their money earlier rather than later, so even if Seyfarth Shaw and other firms on the "list of shame" plan to make up for their failure to salary-match by beating the market at bonus time (including an additional amount for the time value of money), young associates with loans and other monthly expenses to pay might be unhappy, despite looking to the IRS just like their higher-salaried, less-bonused peers. Perhaps more importantly, letting people figure out over the year how much they want to work, instead of having a pre-set requirement at the beginning, would wreak havoc on planning. How can the partners know how much work to take on, if they don't know how much work will be done?
I'm still trying to cope with the idea that there's a "Supreme Fashion Court" at the University of Chicago, but OK:
IN THE SUPREME FASHION COURT
UNIVERSITY OF CHICAGO LAW SCHOOL DISTRICTPeople of the University of Chicago Law School, plaintiff,
v.
Lior Jacob STRAHILEVITZ, defendant.
FASHION CRIME COMPLAINTCitation 1 G.Q. 1 (2007)
The People of the University of Chicago Law School, through the Justices of its Fashion Court, state and allege the following:
1. Plaintiff is informed and believes, and upon that basis alleges, that defendant is an assistant professor of law at the University of Chicago Law School.
2. Plaintiff is informed and believes, and upon that basis alleges, that defendant teaches the legal subject of Property to Class of 2009 sections A, D, and E in Classroom III on Mondays, Tuesdays, and Thursdays of the University of Chicago Winter Quarter.
3. Plaintiff is informed and believes, and upon that basis alleges, that defendant did, on the 29th of January 2007, wear a grossly unmatched tie and shirt combination to his employment, to wit: a white dress shirt with vertical dark-blue stripes and a baby-blue tie with diagonal stripes.
4. Plaintiff refers to and incorporates herein each and every allegation of ¶¶ 1-3 of this Amended Complaint.And the response from the professor, who perhaps was focused on his driving to the exclusion of his clothing:5. As a result of the actions described in ¶¶ 1-3 of this Amended Complaint, plaintiffs’ sense of vision was gravely offended and an otherwise hair-raising and exciting lecture on the history and constitutionality of zoning regulations was disrupted.
6. As a result of the actions described in ¶¶ 1-3 of this Amended Complaint, the defendant is alleged to have perpetrated the fashion crime of aggravated sensory assault against the plaintiffs.
PRAYER FOR RELIEF
Wherefore, plaintiffs pray for judgment against defendant as follows:
1. Declaratory relief in the form of declaring the defendant to be poorly dressed;
2. The penalty of death by wood-chipper against the defendant’s offending tie;
3. A two-week probationary period, to be supervised by a duly appointed probation officer of the Court; and4. Court costs, to include one beer for each Justice at the next Bar Review.
Dated: _______________ By: __________________________Hon. Joshua B. Elkins
Chief Justice
Supreme Fashion Court
Law School District
University of Chicago
IN THE SUPREME FASHION COURT
UNIVERSITY OF CHICAGO LAW SCHOOL DISTRICTPeople of the University of Chicago Law School, plaintiff,
v.
Lior Jacob STRAHILEVITZ, defendant.Defendant’s Answer
Citation 1 G.Q. 1 (2007)
Defendant Strahilevitz hereby invokes his constitutional right to a trial by a jury of his peers, and responds to the Fashion Crime Complaint as follows:
1. Defendant admits that he is presently an assistant professor at the University of Chicago Law School.
2. Defendant admits that he teaches the legal subject of Property to, inter alia, Class of 2009 sections A, D, and E in Classroom III.
3. Defendant denies that he did, on the 29th of January 2007, wear a grossly unmatched tie and shirt combination to his employment. Defendant further denies that on said date he wore a white dress shirt with vertical dark-blue stripes and a baby-blue tie with diagonal stripes. In actuality, the shirt stripes were brown, dark gray, and powder blue. The necktie in question displayed navy blue, Tahoe blue, white, and Cape Code gray stripes. Defendant further denies that he owns any baby-blue ties.
4. Defendant denies that plaintiffs’ sense of vision was gravely offended. To the extent that some plaintiffs suffered such aesthetic harms, they are not actionable. See, e.g., Wernke v. Halas, 600 N.E.2d 117 (Ind. App. 1992). Defendant further asserts that during Property class on January 30, 2007, several of the plaintiffs admitted that they approved of the ensemble in question. Defendant further asserts that a disappointingly large number of prospective plaintiffs were inexplicably absent from class on January 29, 2007, and could not possibly have suffered any damages. Defendant denies that he delivered an otherwise hair-raising and exciting lecture on the history and constitutionality of zoning regulations on January 29, 2007. Defendant does not lecture. Defendant uses the Socratic method.
5. Defendant denies having perpetrated the fashion crime of aggravated sensory assault against the plaintiffs.
AFFIRMATIVE DEFENSES
Defendant further asserts the following affirmative defenses:
1. Defendant asserts the defense of sovereign immunity. See Alden v. Maine, 527 U.S. 706 (1999). A Professor in his class is the applicable sovereign, and defendant has not waived sovereign immunity via statute.
2. The instant suit is time barred. Defendant wore the tie in question in his Glass Menagerie photograph, which was published at the beginning of the academic year. The applicable statute of limitations requires that all complaints about neckties be brought within one quarter of their initial appearance. 34 R.F.C. Stat. § 45.2.a.
3. The instant suit violates the separation of powers. Joshua B. Elkins is a plaintiff in this suit, purportedly the Chief Justice of the Fashion Court, and served the complaint upon the defendant. One man acts as plaintiff, prosecutor, judge, and jury? Where the heck does Elkins think he is, France?
4. Beauty is in the eye of the beholder, and aesthetic judgments are protected by the First Amendment to the United States Constitution. Plaintiff Clowery said as much in class yesterday, and plaintiff Donoho even stated that he liked the look of the Stoyanoff house in State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d 305 (Mo. 1970).
5. Plaintiffs have failed to seek certification of this cause of action as a class action. Incorporating by reference the facts asserted in paragraph 5 of the defendant’s answer, defendant asserts that some purported plaintiffs were not injured by the defendant’s conduct and lack standing to sue. In such instances, it is incumbent on the plaintiff to seek to certify his suit as a class action, and plaintiff’s failure to do so is grounds for dismissal. See generally Fed. R. Civ. Pro. 23(b) or something like that.
6. The instant suit violates the Defendant’s rights under the Ex Post Facto Clause of the United States Constitution. The purported crime of “sensory assault” was neither enacted by the legislature nor promulgated prior to the facts forming the basis for the plaintiff’s complaint.
COUNTERCLAIM
1. Defendant asserts the counterclaim of civil extortion. One of the plaintiffs, Joshua B. Elkins, demanded on January 12, 2007, that defendant “donate” an orange, lavender, and white striped tie to the CLF auction. Upon receiving defendant’s reply that he would instead selflessly donate a monopoly game night, complete with dinner, drinks, and desserts for five students, Elkins responded thusly:
I am saddened and dismayed at the news that your orange tie will not be donated to the auction. I was looking forward to getting my hands on it. I urge you to reconsider before the January 23rd deadline for auction item donations.On January 30, 2007, plaintiff Elkins responded to defendants’ allegations by signing and serving the instant complaint upon the defendant. Plaintiff Elkins had no legal right to demand that defendant turn over his tie, engaged in misrepresentation by asserting his interest in owning the tie, when his true purpose was to destroy it, sought to abuse his power as a justice of the Fashion Court by demanding the defendant’s compliance, and caused the defendant financial distress. The orange tie was designed by the famous fashion designer Ike Behar and was relatively expensive, to say nothing of its sentimental value. See Perez v. Alcoa-Fujikura, 969 F. Supp. 961 (W.D. Tex. 1997).
Worse still, I've looked over the list of items up for bid at the auction and there's none I'd like to have more than your tie. Crochet lessons? Oh, please. Even your (doubtlessly fun) Monopoly Night is no substitute. CLF is going to miss out on a thick-walleted, bad-decision-prone bidder for lack of a simple orange tie.2. Defendant asserts that plaintiff Elkins has committed the crime of sensory assault repeatedly during the winter quarter of classes. Defendant remained silent during the events in question, so as not to embarrass the plaintiff. But defendant is of the firm belief that plaintiff Elkins’ fashion sense “ain’t all that.”
3. Defendant asserts that plaintiff Elkins is guilty of the tort of “having too much time on his hands” and that this excess of leisure time be remedied by his being held responsible for knowing the facts of every noted case referenced in Dukeminier, Krier, Alexander, and Schill’s casebook “Property” for the remainder of the quarter.
MOTIONDefendant moves that “Justice” Elkins, purportedly the chief justice of the fashion court, be recused, given his obvious lack of objectivity, his alleged involvement in an extortion plot against the defendant, and his own written admission that he is “bad-decision-prone.”
Dated: January 31, 2007 By: __________________________Lior Jacob Strahilevitz
Assistant Professor
University of Chicago Law School
WSBA # 30310
Having despaired of writing a publication-worthy version of Dahlia Lithwick's old Slate column about the Duke sexual assault accusation, I graciously notify De Novo readers of her call for assistance:
So, I turn to you, my readers, to help me invent a new Imaginary Right-Wing Hack. And I'm asking you to start with that bilious conservative wing nut, Dahlia Lithwick, whose April 22 column on the Duke rape case was a full-bore assault on women and minorities, and a stunning piece of right-wing vitriol to boot. Make free with the cut and paste functions, and please don't be afraid of those ellipses ... Rewrite the column as Ann Coulter channeling Bill O'Reilly and send your entries to Dahlia.Lithwick@hotmail.com. I reserve the right to print your name unless you tell me otherwise.I tried, but when I found myself writing "Because the incompetence of the liberal, elitist Supreme Court has infected trial courts, such that predating black men are allowed to escape from punishment, while the once-and-future Democratic Senate tarred the Good Black Man Clarence Thomas with that dark brush," I realized that I lack the Coulter/O'Reilly combination of allegedly humorous insult and hammering ideas untainted by literary allusion. (Both actually are somewhat uncommon among the right for an apparent lack of Biblical knowledge; if I have to listen to mishomony, it sounds better with ringing references to Sodom than with Coulter's tittering talk of "in a gay wedding, whose name will they take?")Bonus points if you can turn this around for Valentine's Day. And triple bonus points if you can manage to do the same thing with the Chili's menu.
First prize will receive a subscription to the Weekly Standard, on my dime, plus a copy of my upcoming book, How the Duke Lacrosse Team Is Responsible for Global Warming, 9/11, the Death of Anna Nicole Smith, and the Black Plague of 1347.
Today in History (1914) - In New York City, the American Society of Composers, Authors and Publishers is established to protect the copyrighted musical compositions of its members. Pay up, "Happy Birthday to You"-singing intellectual property thieves.
I thought the hostility of Columbia's neighbors to the university's expansion into Northern Manhattan simply was the usual antagonism between a wealthy school and working class people who think they are unlikely to benefit from the academic presence. There might be more specific causes:
"In the 1990s, African American [and Latino] youths in New York were injected with Fenfluramine -- half of the deadly, discontinued weight loss drug Fen-Phen -- by Columbia researchers investigating a hypothesis about the genetic origins of violence."
That's from a Washington Post review of Medical Apartheid: The Dark History of Medical Experimentation
on Black Americans from Colonial Times to the Present. The use of the word "apartheid" seems peculiar, given that what the author focuses on is not the mere refusal to admit African Americans to medical facilities, but the active abuse of their bodies. If African Americans had been neglected only, Tuskegee would have no particular resonance; white people's not providing health care to black people is hardly news. The false assistance given to trusting patients, in the name of "research," is what gets remembered.