Date based archive De Novo: April 2007 Archives

April 30, 2007

The Supreme Court Goes to Video!

No, we are not going to be able to watch oral arguments, as this presumably would require someone to kill Justice Souter so we could roll the camera over his dead body. Instead, the 8-1 Scott v. Harris Court, in a majority opinion by Scalia, appears to have based its decision on the videotape of a high-speed buggy chase in which the plaintiff-appellee Harris drove over 90mph on wet roads to evade the defendant-appellant Scott, who bumped the plaintiff's car and sent it down an embankment, causing the plaintiff to be so severely injured that today he is a quadripledgic. Perhaps I am biased by having gotten ticketed for speeding a few times myself (though always pulling over and looking at the officer with big sad eyes rather than attempting to evade capture), but I would think a jury should be able to make this call. Having something that presumably would be entered into evidence in the civil suit be so important in the Supreme Court's ruling indicates that we could get the same result -- no penalty for the officer -- while allowing the plaintiff to have his day in court. If the plaintiff's account of events is utterly unbelievable once you see the videotape, then let defense counsel impeach the hell out of the plaintiff on cross.

Count me among the Volokh commenters and SCOTUSbloggers who see this decision as a surprising mistake by every justice except Stevens. A jury should have decided whether this was an unreasonable seizure giving rise to Section 1983 liability, just as the Ninth Circuit (on remand after the Supreme Court's Brower v. Inyo County decision) held,

The necessity inquiry is a factual one: Did a reasonable non-deadly alternative exist for apprehending the suspect? A dismissal for failure to state a claim "cannot be upheld unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved." Sanders, 794 F.2d at 481. Here, it cannot be said with certainty that no non-deadly alternative existed. This is a question of fact, and thus granting the motion for failure to state a claim was error.
INCIDENTALLY: Best moment from Scott's attorney in oral argument: "And to put it in a more complete perspective, 90 miles an hour is mathematically equivalent to over 130 feet per second."
Second best moment from Harris's attorney: Justice Kennedy's disbelief that driving 90mph isn't a felony under Georgia law. Absolute best moment:
JUSTICE BREYER: Am I -- did I mis-see that? I'll go look at it again if you -
MR. JONES: The -- feel free to look at it again.
MR. JONES: But those are not the facts that were found by the court below in this -
JUSTICE BREYER: Well that's, that's what I wonder. If the court says that isn't what happened, and I see with my eyes that is what happened, what am I supposed to do?
MR. JONES: Well, I think you apply the law, Your Honor.

Posted by PG at 04:26 PM | Comments (0) | TrackBack

April 29, 2007

Quotent Hittables

It must be baseball season. How do I deduce that you ask? Well, Kozinski public enemy no. 1 Howard Bashman is writing War and Peace-length blog posts about the Phillies. Speaking of the Phillies, my fellow Bruin and current Phillie Chase Utley has picked up his game--giving me much needed numbers for our fantasy league at Boalt. And speaking of the fantasy league, as soon to be lawyers, we have referred a dispute between two members to a neutral arbitrator. To quote the arbitrator: "When I apply for a clerkship, this arbitration ruling will be in my application packet." Yes indeed, even in the legal world, baseball is in full swing.

What quote do I have in mind to capture the passion that is spring baseball? Well you don't know me very well if you can't guess that it's something straight from The Simpsons softball episode ("Homer at Bat", season 3). In that episode, Mr. Burns hires some ringers from the major leagues to play for his beloved power plant's softball team. The episode concludes with a parody song to the tune of "Talking Baseball."

Well Mr. Burns had done it, The power plant had won it, With Roger Clemens clucking all the while, Mike Scioscia's tragic illness made us smile, While Wade Boggs lay unconscious on the barroom tile...

We're talkin' softball...
From Maine to San Diego.
Talkin' softball...

Posted by Armen at 08:21 PM | Comments (0) | TrackBack

April 26, 2007

I Heart the Nuts & Boalts

Despite Armen's exasperation with the Saturday night witch hunt for the Boalt student who posted a hoaxed threat against UC Hastings on AutoAdmit, and his annoyance at classmates who take their opposition to John Yoo's political views to the point of peitioning for his firing (isn't keeping someone from a job in his field for such a reason called McCarthyist blacklisting? no wonder Armen found the two seemingly disparate incidents coming together in a single post)...

... he still has the best law school community online since Wings & Vodka graduated. Though I'd say he's working with superior material: who else but Berkeley law students would take the nationwide Restore Habeas campaign and turn it into a rally against a professor? It's the sort of thing that makes me sad not to have applied on the assumption that I wouldn't have gotten in.

Posted by PG at 09:37 PM | Comments (2) | TrackBack

April 25, 2007

We should have let those 20,000 people rot in the Superdome for their own moral and economic sakes!

Volokh has a new guest-blogger, Steven Landsburg, who writes a column in Slate and has a new book, called Yet Another Freakonomics Knockoff (Hehe. I kid... it's called More Sex is Safer Sex: The Unconventional Wisdom of Economics). No link because, frankly, I really feel sorry for anyone who actually pays to read this book.

I'm not quite sure why he is guest-blogging there, as Volokh is a blawg, and Landsburg is an economist without any pretensions even to be a "Law and Economics" expert. But whatever... Prof. Volokh may, of course, allow whomever he wishes to grace (or sully) the virtual pages of his blog.

Landsburg's first post was some sort of proposal to give everyone two congressional votes... one to be used in their district and one to be used in the district of their choice. If he can't have that, he wishes congressional districts were not geographically based but instead split up by voters alphabetically by last name. He apparently prefers these decidedly non-federalist arrangements because, in his view, they would somehow restrain congresspeople from redistributing federal income tax through porkbarrel spending. In my view, these are what I call "Kucinichesque" proposals.... they are easy to make because they don't have a snowball's chance in hell of being taken seriously and are therefore not prone to being seriously challenged (which would make the giant gaping holes in them apparent to even the most myopic), and at the same time are outrageous enough to draw attention to their progenitor and help him sell a lot of books. I mean, really... in a country where less than 50% of citizens know who Nancy Pelosi is, do we really think people can stay on top of 400-whatever congressional races? Should we really discard the Constitution and start from scratch by setting congressional districts by last name?

Anyway... he followed this post up by pointing out a comment to his original post that attacked federal aid to Katrina victims on the fairly ludicrous and far reaching grounds that federal aid is unconstitutional (stifled giggle), "morally" wrong, and, get this, "destroys the moral fabric of society" (it also apparently suppresses the private insurance market and rewards risky behavior, which are somewhat less laughable rationales, but not by much).

Landsburg endorses this view, and then adds his own fascinatingly farfetched argument: Federal disaster relief to the poor harms the poor most of all! That's right.... here are the exact words: "Poor people, more than most, value cheap housing. A policy of disaster relief makes cheap housing hard to find. Therefore a policy of disaster relief is likely to impose a particular burden on the poor. If you want to help poor people, eliminating federal disaster relief is a good place to start." And it's all proven by the wonderful science of Economics! See, he's an economist, and he said that it is true, so it must be! He even used words like "therefore."

A couple of my most significant objections to Landsburg's viewpoint:

1) Faulty reasoning: In the space of a few paragraphs, Landsburg claims that housing prices are higher in New Orleans (high housing prices in NOLA prior to Katrina?) and San Francisco than they would otherwise be because we are all relying on the federal government to bail us out if there is a disaster, and therefore demand is increased for these supposedly "disaster prone" areas. This is so ridiculous on it's face that it almost doesn't deserve analysis. There is, of course, no data on this: it is for all intents and purposes impossible to isolate through regression analysis the impact that individual and group expectations of the potential for a disaster and the anticipated government response might have on the market pricing of homes. There is also nothing even akin to a survey supporting this proposition, for example something asking people whether they are more likely to move to a disaster prone area becuase they believe the government is likely to compensate them if one occurs. And of course, we all run some chance of a disaster: hurricane, earthquakes, fires, people flying planes into your buildings, tornadoes, nuts who hate taxes with a truckful of fertilizer, etc. etc. Stating it as fact here is a matter of faith, not of science; all kinds of suppositions are assumed to exist in economic theory and modeling under the "rational actor" theories, which is nothing but a model, the basic premise of which has been chipped away by empirical observation that actors are often irrational (I don't even think it has been modeled in the present example; rather, I think Landsburg just said it regardless of having no evidence at all that it is true). People are compelled to live in places because of family, jobs, lifestyle, and, yes, cost of living. However, the minute increase in demand for housing in disaster prone areas that may come from an expectation that the government will probably provide federal aid in the case of a disaster are by any possible measurement insignificant when compared to the benefit that a family recieves from federal aid in the face of the horrors of a disaster on the scale of Katrina. And that's even if they exist at all. We can get into a zillion counterarguments: for example, that people who move to "disaster prone" areas are reducing demand for "non-disaster prone" housing, and thereby driving down housing prices across the country. Or, that housing prices in "disaster prone" areas are already low, because, in Landsburg's fantasy, the "disaster-proneness" of an area is something we are actually thinking about, and therefore people are reluctant to move there, lowering demand. Or, we can point out the extremely obvious: disaster relief is such an incomplete solution to being affected by a disaster that no one in their right mind would agree to pay more money for housing in the hopes that their home mightsomeday be destroyed and then, Yippee!, they wil get to take other people's money! And so on and so forth.

It seems that Landsburg has either (a) a complete inability to understand the difference between the various symbols we call "numbers" and use as a language to compare amounts and sizes of things, (b) an inability to comprehend poverty, externalities, non-hypothetical empirical analysis of human behavior, and the actual human and economic cost that was incurred by Katrina and how much worse it would have been for both the people affected and our society and economy as a whole if there was not the availability of aid, both from charities and our tax dollars, or (c) doesn't like paying taxes, and wants to find a fancy reason for why he shouldn't pay for anything but the things he, Steve Landsburg, wants to pay for. Whichever fault of reasoning Landsburg has (I'm gonna guess it is a combination of (b) and (c)), the guy has made no linkage between the alleged increased in cost and the benefits of disaster relief, just simply stated that it was larger with no proof or logical reasoning whatsoever.

2) Morality and belief. Most of the comments on morality are from the commenter, but Landsburg obviously endorsed them. And, of course, his argument rests on some pretty big assumptions that he posits as fact, but are really libertarian ideology.

It was suggested by the commenter that the distribution of federal aid by taking it from taxpayers and giving it to victims of disasters was immoral. Now, I'm an atheist and a firm advocate of the viewpoint that morality is a social construction, but I am unaware of any major religion or moral code that supports the contention that it is immoral to tax or demand tribute. "Render unto Caesar" was not then qualified by "unless you don't like what Caesar is doing with it, particularly if he is giving it to the poor." Of course, some hardcore libertarians believe that there is a "natural" law right to ownership of property; however, there are very few adherents to this view, with most property scholars today, both legal and economic, seeing property ownership as a right extended by government for pragmatic economic reasons, and not a right extending from God or some other "natural" enabler of morality. But it's a hard time reasoning with the folks who believe such things. My only response is that on Judgement Day you can prove me wrong, and all the IRS agents will be sent straight to hell. Until then, try making that argument in court.

Rather, what I do see are moral requirements to care for those less fortunate than yourself. I see moral obligations to tithe. I see moral obligations to not question the circumstances of those less fortunate, but simply to care for them, whether sinner or saint, as, e.g., Jesus cared for prostitutes, non-believers and thieves.

As a disaster services casework supervisor for the Red Cross, I have seen thousands of cases of victims of disasters. After Katrina, wealthy victims were relatively fine... they evacuated in their cars days in advance, they had savings to get them through to resettlement or to return to rebuild (by no means, however, do I wish to diminish the pain and loss of everyone involved; I only am pointing out the relative economic position of the wealthy to those less fortunate). But for the vast majority, Federal aid and charity were not nearly enough to deal with their tragedy. Here in San Francisco (where we opened cases for over 3700 people) evacuees would show up alone or seperaated from extended family (families scattered across the country due to haphazard evacuation), without clothes, money or belongings, no social network or contacts, emotionally devastated and suffering from depression and trauma. We could give them roughly $200-250 each and provide them with a temporary hotel room funded by FEMA, the best we could do considering the number of victims.They would have to spend this money on food, new clothes, and on various sundries. They would have to deal with their trauma, isolation and grief while attempting to locate a job and make a plan for their future in a strange city. If they were lucky the money would last a week. They would come back, not out of greediness or laziness, but because they had nowhere else to turn, and we would have to turn them away.

To this situation, Landsburg and his commenter say: tough luck. Don't take my taxes to help out this people. They should have thought about it and moved to higher ground. Giving them an inentive to move to disater prone areas only encourages other poor people to suck on the government's teat. I don't care if abnormally large numbers of them commit suicide from the trauma and loneliness. I don't care if young women and some teaanagers turn to prostitution to support themselves and their children. I don't care if many of the working poor of New Orleans are now living on the streets in a far-off city. I don't care if tens of thousands of families are still not reunited. Frankly, if the elderly, disabled vets in wheelchairs, and blind people get screwed becuase their home was torn down by a natural disaster, that's not my problem. I don't care if this situation overburdens our social welfare and health systems, because, frankly, I don't think we should have those systems in the first place. I don't care if cities like Houston have a housing and crime crisis. It's their problem, not mine.

In a way, it wouldn't bother me as much if these types could just say. "You know what? I don't care. My happy suburban life is all nice and neat, and I got my eye on a new car. I can't solve the worlds problems, and frankly I am OK with that." But instead of owning up to the real driving force behind their approach, they justify their choice by contending that it would be immoral to help alleviate these people's pain. Or that it is in the poor's own best interests to not provide them with assistance.

Wow. Mind-boggling. My response is as illogical and unfeeling as their's: the world would be a better place if Landsburg and his commenter were simply removed from the gene pool. And economics proves it!

3) Autistic economics. This is a great example of a modern failure of "economics": the acolytes of the discipline believe that it answers everything in a scientific, empirical fashion. On the one hand, this example is not very good, as Landsburg's argument here is not one given to him by economic principles, but one where he started with the answer and then clothed the rationale in hocus pocus. However, note simply the presumption that application of the discipline's principles without any acknowledgement of assumptions, nor a need to test empirically the theoretical result, nor a need to be informed by other sources of what defines a "good" or a "bad" outcome. For example, consider this statement from Landsburg: "It's a general principle of economics that things tend to work out best when people have to live with the consequences of their own behavior, or, to put it another way, things tend to work out poorly when the consequences of our actions spill over onto other people." While that statement is on the one hand untrue in the sense that that is not a "general principle of economics" but, rather, an ideological conclusion derived from theories regarding the free market and the avoidance of externalities, it is comletely devoid of any external analysis to the the theory that makes it self-referentially true (and therein lies its autism). It is also untrue because economics in no way can resolve the question of what is best and what is worst. What is best and worst is informed by ideological, religious, individual, biological, environmental, and even musical, literary and artistic choices (among many, many others), and the presumption that economics alone can answer it is beyond ridiculous. But try telling that to an autistic economist.

Enough. A rare thumbs-down for the otherwise informed and rational writing at the Volokh Conspiracy. What are they thinking with this guy?

UPDATE: Landsburg, in his final post on Volokh, laments that so many people lack his logical skills and understanding of the world. He contends that evidence is unnecessary, as the theory alone is sufficient. He is thoroughly condescending as he posits truths that are self-evidently false, such as contending that "economists" are in agreement with him and hold his theory to be self-evident, while a number of counterarguments from economists in the comments to his post clearly indicate that that is not even close to true.

Posted by Dave at 06:28 PM | Comments (6) | TrackBack

April 24, 2007

Frivolous Thoughts on Corporate Law

My final exam is on Friday. During today's review session, I asked whether Bubbles the porn star mentioned in an old exam question was a red herring or was meant to draw out the fullest extent of possible insider trading implications (given that Bubbles is not mentioned as ever engaging in stock market investments, nor even as understanding English, I thought not). Keeping me from being the only person with a silly question, a classmate asked the professor to explain the transaction behind Barbarians at the Gate.

Meanwhile, today Netflix delivered Wall Street, which I've never before seen. But I think the ultimate 1980s corporate law movie that no one else thinks of as a corporate law movie is Pretty Woman. The hero's redemption is from being a corporate raider who engages in hostile takeovers and sells off the parts, to being part of a fine old shipbuilding enterprise likely to employ many unionized workers. State anti-takeover provisions wouldn't be necessary if every hostile bidder has a hooker with a heart of gold to set him straight.

Morgan Stanley Investment Management seems a bit petulant. Given that NYT Class A shares are publicly traded and presumably are the type that MSIM owns, if they're not happy with how the Class B shares are getting voted -- particularly, how Ochs's descendants keep electing directors who aren't making the company as profitable as it ought to be -- they can always vote with their feet. I have heard that it tends to be either employees of a company or people with a stake in its actions (e.g., people who live in the city where it operates) who are the activist shareholders. But I'm puzzled as to why investors with no such connection would be making a stink about how the Times Company operates instead of simply dropping what they perceive to be a loser in the market. Perhaps doing so would entail a loss at this point, in which case it's a nice act of faith on the dissident shareholders' part to hang in there thinking that different management could turn NYT into a cash cow and bring the share price up even though the company's currently in the red.

According to an older article, "Morgan Stanley Investment Management, which has a 7.6 percent stake in the Times Company, has been a shareholder since 1996 through its Global Franchise fund, one of its better-performing fund offerings. The fund, based in London, takes large positions in a small number of companies that it believes are undervalued and have unique global brands." Only Class B directors sit on the compensation committee, but the only concession to the complaints that seems to have been made thus far is that a couple executives are having their compensation reduced by not getting stock options for 2006 and 2007. (And if stock price isn't looking good, that's not a massive concession.) So MSIM might be bringin' it to a proxy fight. PROXY FIGHT!

The argument, to be nonfrivolous for a moment, is about that split governance structure. Under the dual ownership structure, the Family owns almost 20 percent of Class A shares, which makes the vote-withholding 42 percent of shares a majority of non-Ochs stock; the Family also owns 89 percent of Class B shares and elects 70 percent of the board, which guarantees that control never leaves the Family's hands.

At the heart of the dispute over the capital structure is a more fundamental tension between the interests of the Sulzberger family, which sees itself as the guardian of The Times newspaper, and its institutional investors, who argue that the company’s dual class structure prevents the company from being fully accountable to all shareholders.

"This is a governance issue," said Charles M. Elson, the director of the John L. Weinberg Center for Corporate Governance at the University of Delaware. "If you own 100 percent, you do whatever you want. Once you enter the public, your obligations change."

For advice on its governance practices, the Times Company’s board has hired Martin Lipton, a lawyer with experience in advising directors. For public relations counsel, the board has hired Paul Verbinnen, president of Sard Verbinnen.

With Lipton giving them advice, there's no way Morgan Stanley is going to get the Family dislodged. Hurrah for the dead hand of Adolph Ochs!

Posted by PG at 10:22 PM | Comments (0) | TrackBack

Don't Tell the People Too Much

Prof. Keith Burgess-Jackson posts,

According to Robert Novak, 61% of Americans want partial-birth abortion (i.e., infanticide) to be prohibited by law. See here. The main Democrat candidates for president -- Hillary Clinton, Barack Obama, John Edwards, and Bill Richardson -- want partial-birth abortion (i.e., infanticide) to be allowed by law. If I’m the Republican nominee, I’m describing the procedure in vivid detail at every campaign stop and pointing out that my opponent wants it to be legal. All’s fair in love and politics.
As a candidate, he's presumably not going to mention that the alternative, still-legal second term procedure (dilation and evacuation) does almost exactly the same thing to the fetus, but inside the woman's body instead of outside it. This increases the probability that a medical instrument or a piece of the fetus will pierce her interior or accidentally remain inside to cause an infection. Because as a candidate, why would he want to point out what really happens when legislation is based on procedures rather than the age of the fetus -- on micromanaging physicians instead of drawing clear lines for the point at which a fetus become a legal person? It's so much easier to demonize one's opponents based on half-truths, and especially to ignore that they are asking only for a health exception. As a candidate, will Burgess-Jackson also be advocating the prosecution of emergency room on-call OB-GYNs who use dilation and extraction to remove terminal fetuses from miscarrying mothers in order to minimize trauma to those women's reproductive systems? Presumably a law professor would want a law, particularly one against infanticide, to be fully enforced.

All's fair in love and the politicization of women's health.

Posted by PG at 02:28 PM | Comments (0) | TrackBack

April 23, 2007

Both Cyber Bully and Victim

In response to the tempest over its own unauthorized editing of Anthony Ciolli's author note, YLJ's Pocket Part is turning lemons into lemonade -- i.e., criticism into publishable scholarship: "The Yale Law Journal Pocket Part is soliciting essays and commentaries on the role of law, policy, and extralegal tactics in regulating instances of cyber bullying, including defamatory 'Google bombing.' How, if at all, should regulatory schemes address providers of information who make no endorsement of the information’s content?"

Ciolli himself seems to have a slightly fuzzy idea of what constitutes both "defamation" and a disprovable "statement of fact." [1] He declares, "Defamation has a very clear legal meaning and most (if not all) of the posts in question, while offensive and in bad taste, are not defamatory. 'Stupid B---- to Attend Yale Law,' for instance, is clearly an opinion and not a statement of fact. Furthermore, there is no evidence that the statements that could be construed as statements of fact, like the allegation that the girl in that thread has a 159 LSAT, are actually false." Omitted by Ciolli is the fact that the thread also alleged that the young woman in question had STDs.

But his phrasing of the legal standard for defamation is backwards -- truth is an absolute defense to a defamation claim, but (to my knowledge) the plaintiff need not first prove that the statement is false. The plaintiff can sue over the statement she had STDs at the time of the posting, and she need not provide a medical report from the time showing her to be free of genital warts and herpes. If the defendant can prove that the plaintiff did have a 159 LSAT and an STD at the time of the posting, then he is clear and probably could get costs due to the plaintiff's having sued in the knowledge that she had not been defamed. That Ciolli has his standard inverted would be quickly apparent should the Xoxohthian making the defamatory statements be sued, and he fail to show up in court -- having failed to mount any defense, including one of truth, he likely would be found at fault and the plaintiff could win absurd damages, without having proven the Xoxohthian's statements to be false.

Whether AutoAdmit could be a heavily trafficked forum without including a great number of objectionable posts has been dealt with by people like Heidi Bond, so I won't rehash the point except to concede that yes, there's no way to have half a million unique visitors each month and not have someone calling another poster a "f@g."

However, AutoAdmit's owners/ administrators [2] appear to abhor any measure that would lessen their ability to attract the largest audience and greatest number of participants, no matter what the participants are writing or the audience reading. Even in his half-hearted attempts to characterize the Washington Post article as having gotten the facts wrong -- given AutoAdmit's Google power, I'd advise him to post a complete refutation there [3] -- Jarret Cohen never clearly denies that the people who have been named and even had their photos and contact information posted on AutoAdmit initially requested that he edit or delete those threads. Instead, his zeal for privacy [4] is reserved for those in his "community":

Cohen, in a separate interview, said he will not "selectively remove" offensive comments, and that when he has attempted to do so, he was threatened with litigation for "perceived inconsistencies." ...
The two men said that some of the women who complain of being ridiculed on AutoAdmit invite attention by, for example, posting their photographs on other social networking sites, such as Facebook or MySpace.
Cohen said he no longer keeps identifying information on users because he does not want to encourage lawsuits and drive traffic away. Asked why posters could not use their real names, he said, "People would not have as much fun, frankly, if they had to worry about employers pulling up information on them."
You read that correctly: Cohen's community should not have to worry that their own voluntary actions will make them Google-findable by employers, but to hell with those who are involuntarily made Googleable by that community and who want to be able to track those harassers down. There is a stated "anti-outing" policy on AutoAdmit that prohibits users from connecting pseudonyms with the people behind them, and Cohen will delete posts in which one person says something like, "Hey, I know who made that comment about one of our classmates, he was sitting in front of me in class and I saw him entering a comment on this site at the time this went up -- it's John Smith." Pity that Cohen stopped keeping identifying information on users right after he used such data to mock Brian Leiter.

I am not among those who advocate for attempting to file some sort of ethics complaint against Ciolli or otherwise obstructing his future career [edited]. His mistakes were mainly those of overconfidence; as a very bright young man who racked up multiple academic degrees (Cornell, Harvard, Queen College) and publications (Penn JILP, MIT's MiT) at an early age, he seems to have underestimated the current counterforces to communities that harbor and enable angry males. Given that Cohen is attracting complaints even from other countries, Ciolli is stepping away just in time and hopefully not too late.

RANDOMLY: Bicoastalcurious accurately assesses the pre-21 PG on the drink, if not the school. Is Columbia the amaretto sour of legal education -- using proper ingredients to make something that tastes like candy?

[1] For example, his article says that "no one reads the Columbia Journal of Gender and Law from cover to cover." It makes this claim as a statement of fact, albeit one with no citations, in the same way one might say the sky is blue. Is this defamatory of the Journal? Given that he doesn't posit a lack of cover-to-cover readership as clearly negative, I don't think it has sufficient potential to harm reputation, but I bet that I could find someone (probably a CLS faculty member or alumnus of the Journal) whose reading of CJGL would falsify Ciolli's statement, thus satisfying that prong of defamation.

[2] Ciolli has been distancing himself incrementally from AutoAdmit since it started catching flak from more significant people than Brian Leiter, and capped it with last month's "resignation" from his former position as Chief Education Director. However, I am not clear on what this move entails. Ciolli's Education Directing produced two working papers, one by himself and one by Aaron Chalfin (who, though his author note describes him as "an unemployed individual with too much time on his hands," and a recent dropout of Georgetown Law, currently is putting his master's in economics to good use at the Urban Institute). If that's all Ciolli ever has done for the site, then Jarret Cohen appears to be using him as the academically prestigious face for the business, and Ciolli has made a mistake by wading into AutoAdmit's public battles when he repeatedly has said that he exercises no control over the site. He's been thoroughly tarred with Cohen's brush, and Cohen's been made to look both stupid and, far more fatally, hypocritical for protecting the anonymity of those who harass yet refusing to help those who are named by the harassers.

[3] The nearest thing I could find on AutoAdmit to a defense of Cohen's actions and inactions was this statement, which focuses almost exclusively on Reputation Defender and claims that RD actually has caused much greater harm to its clients than Cohen's forum ever did. I am a little confused as to how this is true, given that at least one person retaining RD's services has successfully pushed AutoAdmit's intensely negative threads about her to the second Google search page. Cohen never makes explicit what harm has been caused to RD's clients that did not already exist. Indeed, he rather implies that RD's clients have become unfortunate individuals being taken advantage of only now that they are RD's clients. By going on Good Morning America and otherwise publicizing their plight, the clients are being tragically exploited by RD, which is evilly using them for its own ends. No way can these little girls be making their own decisions to stop taking whatever Cohen's community chooses to dish out. But prior to retaining RD's services, they were people who, if they were very polite, might deserve Cohen's help:

2) I will resume removing specific threads for individuals who contact me directly and in a professional manner, without threatening litigation, subject to my discretion as always. I will make more of an effort to check my e-mail and not let people slip through the cracks. This, of course, means I will begin with the individuals at hand.

3) Specifically, I will remove threads on Brittan Heller if she apologizes to me (in private) for hinting that she would resort to litigation in her very first e-mail to me two years ago, and later enlisting Professor Brian Leiter of the University of Texas Law School ... to wage a failed harassment and defamation campaign against me and Anthony Ciolli on her behalf. [According to Prof. Leiter, Ms. Heller did not retain him as counsel.] This is the main reason this has dragged on for two years, Ms. Heller, and I'm sorry that it wasn't resolved before you resorted to working against me by proxy.

In other words, Cohen is pissed off that Ms. Heller dared to a) refer to litigation as an option, b) talk to other people who were annoyed by Cohen, and c) having found her own efforts useless, "resort to working against [him] by proxy." Judging by this attitude of self-righteous indignation in the face of another person's pain, Cohen feels no inherent sense of ethical obligation to respond to people who are upset to find themselves described in the fashion that Ms. Heller has been, especially if those people committed the terrible error of hinting that they could do more than supplicate to him, that they might have their own legal, social or economic power. (Incidentally, have any of the people at whose request Cohen claims to have edited threads come forward to defend him? They needn't fear that doing so will create Google problems, given that the threads supposedly are gone; a simple quote like, Jane Doe, who asked Cohen to take down a thread, says she found him to be helpful in doing so might go a long way to rehabilitating Cohen's current image as an cheerleader for cowardly, anonymous bullies.)

Moreover, note that if the WaPost article is correct, threats of litigation by AutoAdmit posters apparently are reason for Cohen not to take down their threads, but threats of litigation by the subjects of the posts are reason for Cohen not to take down those threads as well. I am not sure why Cohen must stand bravely against the lawyers when it comes to the victims of harassment but not the perpetrators.

No mention is made in Cohen's letter of the posts that remain about other women, and that are very easily found once one begins delving into the controversy. Nor, in his proposal for having harassment victims buy Google Adwords to counter negative Google bombing, or for having such people go through a lengthy process "to attach responses to Google search results for their name [that would] provide explanations for prospective employers, dates, and other interested parties for search results that they believe are damaging to their reputations," does it seem to occur to Cohen that he could do the same for AutoAdmit. If he's found Ms. Heller or any other person to be insufficiently polite and submissive in her request to have a thread edited, why not offer her the option to have a reply posted at the top of the screen on which the thread appears? Why put the burden on Google instead of individual site operators?

Cohen also seems to be a bright young man, but I'm less inclined to cut him slack given his "they asked for it" attitude about the women victimized on his website. Those comments are simply appalling: the bit about women daring to use Facebook and MySpace and thus inviting attention (and lengthen those skirts, ladies, lest you drive the menfolk to rape!); and the policy of definitely not taking down any thread if the woman makes her request in anything other than a purely begging-for-a-favor tone. I'm not going to speculate what's going on in Cohen's head that causes him to say such things; he's 23 and it's mean to apply feminist analysis to someone who started high school the same year I graduated. Let's keep it at the Cosmo level: He's a guy, hanging with his boys on his message board, and hopefully this episode will expose him to perspectives other than those of his most prestigious community.

[4] Invasion of privacy, whether through "false light" or publication of private facts, is another tort claim option for those displeased to have their names, e-mails, photographs, habits and (erroneous) personal information publicized by AutoAdmit users, as long as the wannabe plaintiffs are not designated as "public figures."

FINAL NOTE TACKED ON AT THE END: I started this post meaning to write about how we all can become both bullies and victims once we have an online presence, and originally was going to refer to AutoAdmit only to provide an example of someone's making a semi-defamatory (not quite a statement of fact because phrased as "bet") remark about me, to compare with my own negative comments about another person's website. But the much-noted trainwreck aspect of AutoAdmit drew in me, too.

Posted by PG at 01:21 PM | Comments (57) | TrackBack

April 20, 2007

Rampage killers and Race

In a recent opinion piece in Salon entitled "Killer Reflection", Jeff Yank linked to my post "What makes a rampage killer?" as an example of the potential to draw upon stereotypes of Asians and Asian-americans in constructing models of potential killers, and obviously the pitfalls of such stereotypes.

All in all I thought it was a good piece. While not providing much in the way of answers, Yank discusses the conundrum of drawing comparisons between killers based on race; on the one hand, "excluding race from the equation entirely eliminates some very real criteria we might use to better understand why acts like this occur, and how to perhaps prevent them in the future." But on the other hand, "focusing on race, particularly using the lens of stereotype, flattens individuality, and obscures other factors that are more meaningful and important."

In a sense, that was what was driving some of my post. It would be difficult for someone involved with or familiar with the Simon's Rock and VT shootings to ignore the elephant in the corner: in both cases an outsider student of Asian heritage who immigrated to the US at a young age who expresses the desire to rid their college campus of certain immoral practices through violence. Ignoring the cultural link would be absurd. But at the same time, because of the prominence of race in our society, we run the risk of reducing a complex set of interactions to a racial stereotype. The difficulty of dealing with race in our society is that our over-preoccupation with it often leads to either ignoring it or over-emphasizing it. In my original post, my own inability to place the killer's' culture in context was what led to a multi-paragraph discussion on race and it's potential effects on a killer mind. Race was over-emphasized due to my difficulty in dealing with the subject (which really has a lot less to do with race and more to do with both being a first generation immigrant with the particular circumstances of their home country, the effect of their parent's and the treatment they have received and/or perceives in US society).

It is the reality of our society with a hegemonic culture (some might call it "white" culture, but I would say it is broader than that) that race is going to sometimes substitute for a cultural identifier, and particularly so in the case of minorities. In the case of Columbine, we identified the killers with a cultural image of suburban idyll, of teenagers who lack for nothing materially (and thus, in our society, impliedly white) and who embrace "outsider-dom" through their clothes, hairstyles and interests. We even put a name to them: the "trenchcoat mafia."

Are there stereotypes here? Of course there are. Ever since Columbine, I'm certain that teachers across the country have kept their eye on suburban goth kids in black trenchcoats. While we have not racially categorized those students, we do not need to... because of the hegemonic culture, we automatically classify them as white without explicitly saying so. At the same time, if we categorized Wayne Lo as a suburban kid from Montana, or Cho as a suburban kid from Virginia, we obviously miss important cultural signifiers.

One of the difficulties in using race as a cultural signifier is it's inalienability. Suburban white kids can take off their trenchcoat and avoid the implications. Asian American students cannot. And when you combine these facts with the ignorance prevalent in our society, it results in further tragic events, such as violent targeting of Korean students.

But it is the cultural impacts of race and what race stands for that we are looking for when comparing these killers, and not the race itself. Cultural indicators may or may not correlate with race, and when they do they are often attacked as stereotypes. As a white American born to educated parents who raised me in a place and culture that had less emphasis on education and where I was persistently an outsider due to my race and heritage (a slum in Latin America), I can certainly identify with the alienation Lo and Cho may have felt in their schools here, and can see where that psychological effect of such a situation could lead to such tragic results. However, you can hardly say such a context is common to whites, though it might be relatively common to first generation Asian immigrants. It is, of course, also a stereotype. What to do? Do we ignore that such a situation is prevalent among Asians? Then what about me and other whites like me? I don't know the answers any more than Yank does, but I find them important and interesting.

I had a minor quibble with Yank's characterization of my position. Yank notes that I wrote "across the board, college shooters seem to be males under some pressure for success, academic and/or sexual, which would seem to include many Asian males" which seems to imply to him that I believe this stereotype of Asians imputes the ability to kill to all Asians who demonstrate that quality. And, in a broad sense, yes, I do. But he failed to note that immediately preceding this quote I stated that Asian males seem "to be a significant exception to the general rule that mass killings are carried out by white males." My attempt there was to try to find a more explicit connection: are rampage killings more closely correlated with the killers being white or Asian, or are they more correlated with killers that are males under great pressure for success, be it academic or sexual? Can we further refine the causes behind rampage killers, or develop a profile of them that goes beyond that? Should we ignore these observations if they veer into stereotypes? There is a delicate balance here, and I am not sure what it is. However I am glad that some, including Yank, are interested in discussing these matters.

Posted by Dave at 01:33 PM | Comments (2) | TrackBack

Columbia Drama

While I can't quite imagine a Minuteman-level tussle between Falun Gong and CUCSSA's defenders of the motherland's reputation, I am sorry that playing a juror downtown prevents me from seeing how it plays out:

Dear Students,
Today (April 20) there will be a forum on Organ Harvesting from Live Falun Gong Practitioners, held in Uris Hall 301 from 12-2pm. It is co-sponsored by CU Amnesty International and Falun Dafa student club. Falun Gong (or Falun Dafa) is a peaceful meditation practice, popular around the world, and brutally persecuted by the Chinese Communist regime since 1999. The most recent discovery by independet Canadian investigators has been of the organ harvesting from live practitioners of Falun Gong (, and the purpose of the event today is to publicize these findings and expose the crime.

Clearly, the Chinese Communist regime is using all available means to hide the information about this atrocity, and wherever forums were held before, Chinese students were called upon to inerfere.

Below, please, see the message that was sent by the Columbia University Chinese Students and Scholars Association to all of its members (over a thousand) yesterday. This email clearly goes against Columbia University values, it is thretening and hurtfule. It serves to incite hatred and call for actions of inteference.

Please, be aware of this matter, and support the freedom of speech and safety of the participants of this event.

English translation is followed by the original text in Chinese.

Subject: Urgent call: defend motherland's reputation, deny cult's rumor From: CUCSSA To: Columbia University Chinese Students and Scholars Association: ;

** Urgent call: defend mother land's reputation, deny cult's rumor **

Every member and friend of CUCSSA:

Perhaps you have learned through the announcements filling Columbia's campus that, at 12noon (Apr 20 Friday), the so-called Columbia University student club "Falun Dafa Club", has messed with the so-called "independent investigation team," and will have a panel discussion on "Genocide in China: Organ harvesting from live Falun Gong practitioners"

Falun Gong is a cult legally banned by the Chinese government. The Falun Dafa club at Columbia is a tool used to demonize our great Motherland and the Chinese people's image, used by some people with hidden intentions. They used the weak point that Columbia university does not know the truth, grabbed an Indian student so as to register their club and act as a deputy to boldly engage in activities on campus to damage China's image.

This time the Falun Dafa club has extensively publicized the event, and many innocent Chinese students are cheated by them. Therefore, CUCSSA will not let this go!

CUCSSA has read the investigation material [into organ harvesting]. It's full of holes and guesses, and damages China and the Chinese government. They only grounds are the fact that some hospitals in China do more transplantations than any single hospital in the US, and then they groundlessly charge that the CCP helped harvest Falun Gong practitioners' organs, helping hospitals create profits. They ignored the fact that medical expenses in the US are astronomical, and the U.S. medical system is a bureaucracy, and low in efficiency, and they didn't do any research into China's situations (nowadays in China, selling part of a liver and one kidney is indeed a means for some families to survive in crisis), and have shamelessly smeared China's image, trying to achieve their unspeakable objectives.

Of course, there are various problems in China. But facing this demonization we cannot hold back!

CUCSSA has prepared extensive refutation materials, and is prepared to refute them at the forum tomorrow. CUCSSA calls for everyone's support! It is guessed that they [forum organizers] may use the reason that CUCSSA's leaders do not follow the meeting's rule, and thus ask security to remove him/her. That may entail inevitable physical contact. The only way to avoid physical contact is to make Americans in the meeting to listen to us; to have a sufficient number of us to go to the meeting; and to encourage and strengthen our voice!

Tomorrow at 11:45am, in front of Uris Hall, CUCSSA will be awaiting and expecting all of you. We hope students and scholars who have time will join us. Today, when Chinese people are struggling hard [to achieve in the world], and when the great Motherland is prospering, we will use the sea of [Chinese Communist] flags, dyed with blood, to strike hard the cult's arrogant fervor, and to resolutely defend the honor and dignity of the Motherland!

Tomorrow we will not dismiss before seeing each other!

Working Committee of CUCSSA

Posted by PG at 11:57 AM | Comments (0) | TrackBack

April 19, 2007

Symposium: Everyone Get in the Carhart

By popular demand -- or rather, by its being the only suggestion -- the next De Novo symposium will be about issues related to the recent 5-4 Supreme Court decision that the federal Partial Birth Abortion Ban is constitutional. In recommending Gonzalez v. Carhart, commenter Luke pointed out, "Ilya Somin and Johnathan Adler have both written fairly lengthy analyses of the case at the VC, and it seems like a good opportunity to talk about federalism, the commerce clause, Roe v. Wade, Raich, etc, etc."

Anyone is welcome to contribute a post to the symposium on any topic related to the case, including those issues that were not briefed by the parties but that might have been relevant. I haven't read the case thoroughly enough yet to write a substantive post today, but I will make one remark of Justice Ginsburg's dissent that is critical (before I probably go into full defensive mode on it). Ginsburg says, 'The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor." Ante, at 14, 24, 25, 31, 33. A fetus is described as an "unborn child," and as a "baby," ante, at 3, 8.' I agree that "abortion doctor" is inappropriate terminology, particularly given how few doctors who perform abortions do so full time, and Planned Parenthood's argument that ob-gyns and surgeons who don't perform out-patient abortions may have to use the procedure in emergency situations for a woman's health. And "unborn child" is a phrase peculiar to the abortion prohibitionists, though "baby" is a common word even in reference to fetuses, when we know that the mother plans to carry it to term.

But before we all rip on Kennedy the Betrayer -- a pastime enjoyed by our conservative friends for many years -- we should note whether it's fair to attribute this allegedly biased language to him. "Abortion doctor[s]" appears five times in the majority opinion, and each time it is Kennedy's own phrase, so fair to criticize him there. Of the nine uses of "unborn child," however, only three are outside quotation marks; the rest are from the legislation itself or from Casey (where Ginsburg had no opportunity to object, not having been on the Court at the time). Moreover, Kennedy points to how the federal legislation at hand is an improvement on the Nebraska statute struck down earlier: 'Congress, it is apparent, responded to these concernsbecause the Act departs in material ways from the statute in Stenberg. It adopts the phrase "delivers a living fetus," §1531(b)(1)(A) (2000 ed., Supp. IV), instead of "'delivering . . . a living unborn child, or a substantial portion thereof,'" 530 U. S., at 938 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). The Act’s language, unlike the statute in Stenberg, expresses the usual meaning of "deliver" when used in connection with "fetus," namely, extraction of an entire fetus rather than removal of fetal pieces.'

The citation to use of the word "baby" on page 3 is just wrong -- it's not there, at least not in the PDF on the Court's website. As for its use on page 8, the only page on which it is used, every single occurrence is from an extended quotation of testimony before the Senate by a pro-life nurse describing an abortion she had witnessed. Kennedy never uses "baby" as his own words, though he does use the term "fetus" in repeating the brutal descriptions of the dilation and extraction procedure that Congress put in the record.

It's a small point, but I am worried that Ginsburg let her disagreement with the majority's legal opinion push her into making unfair and inaccurate accusations about their -- well, let's be honest, Kennedy's -- political or ethical opinion.

Posted by PG at 08:58 PM | Comments (3) | TrackBack

April 18, 2007

Journalism on Cuba

A NYPost op-ed, linked by NRO Web Briefing for 4/18/07, declares that a school trip to Cuba clearly violated the Cuban Democracy Act of 1992 and gleefully says that "the teacher and the students now face fines of up to $65,000 apiece." One would think the author of the article would have read the 1992 act, which says, "The Secretary of the Treasury may impose a civil penalty of not more than $50,000 on any person who violates any license, order, rule, or regulation issued under this Act. ... The penalties provided under this subsection may not be imposed for ... clearly defined educational or religious activities, or activities of recognized human rights organizations, that are reasonably limited in frequency, duration, and number of participants." The $50k limit on civil penalties appears to have been raised to $55k, but they are the same for trafficking in Cuban cigars -- an activity the Post implicitly endorses -- as for traveling to Cuba.

I knew there were exceptions to the general prohibition on travel to Cuba, because when I was in college a professor who was an expert in foreign affairs (and co-wrote a book on the Cuban Missile Crisis) urged me to use my press pass as a writer for the student newspaper to take a trip to Cuba. It was not out of misguided leftist sympathy for Castro, as he is decidedly unsympathetic to the regime, but because he thought seeing Cuba was a great opportunity for someone interested in history and politics. The high school teacher and students in question did break the law by traveling without a special OFAC license, but this is about as contemptuous of the law as any other action that is permissible with a license and impermissible without it: selling hot dogs on the corner, driving a gypsy cab, or -- to use a pet cause of the Post -- smoking in a New York indoor public accommodation.

I don't have a strong opinion on the Cuba restrictions either way; if the pro-democracy folks in Cuba are in favor of the sanctions, I'm OK with keeping them, but if those forces actually oppose sanctions and we're just keeping them to satisfy the old refugees, let's drop them.

Posted by PG at 06:03 PM | Comments (0) | TrackBack

Piglet Was the Bailiff

From the blog:

After the Walt Disney Company "informed a federal magistrate last month that it would not participate in settlement talks with the family that owns the licensing rights to the characters," it looks like Winnie-the-Pooh is going back to court. An anonymous source slipped me a transcript of the earlier courtroom proceedings, excerpted below.

OWL: Court will come to order. The prosecution may call its first witness.

RABBIT: Your Honor, I call Tigger to the stand!

[Witness takes the stand. After much bouncing up and down and declaring that taking oaths is what Tiggers do best, witness finally settles down.]

RABBIT: Mr. Tigger, do you recall the defendant signing an exclusive licensing deal with my client, the Walt Disney Company?

TIGGER: Well, I think he did only it's hard to tell 'cause I was standin' on my head 'cause that's what Tiggers do best, but Roo said I said bouncin' on our tails was what Tiggers do best and I said both is what we do best so I showed him by bouncin' on my head—

RABBIT: Your Honor, permission to treat this witness as hostile.

OWL: Granted.

RABBIT: Isn't it true that you and the defendant colluded to deny the Walt Disney Company its inalienable right to make billions of dollars on your likeness without giving you one penny? I WANT THE TRUTH!

TIGGER: [Breaks down crying.] Tiggers can't handle the truth!

RABBIT: I have nothing further, Your Honor.

OWL: Cross?

POOH: Oh, bother. Tigger, do you recall — tiddly pom — I can't even recall what I wanted you to recall. Oh, bother. Defense rests.

I hope to have a full transcript of testimony from Eeyore as soon as it's available.

Posted by PG at 01:17 PM | Comments (0) | TrackBack

April 17, 2007

Two Notes on Old New York Times

WHY THEY BOLTED: In a laudatory piece about Yale's money manager, who's currently compensated with $1.3 million annually, NYT writer Geraldine Fabrikant notes, "A number of high-profile endowment chiefs have recently bolted academia for the more lush pay packages offered by private funds in the for-profit sector. When Jack R. Meyer, who racked up stellar returns as the head of the Harvard endowment, gave up his post in 2005, for example, he and his team easily raised $6 billion for their new hedge fund. But Mr. Swensen says he has no desire to do something similar." But Harvard's pay package originally wasn't so modest, as Prof. Gordon remarked in an analysis of performance-based executive compensation and what makes us uncomfortable with high salaries:

An illustrative example is the controversy over Harvard University’s compensation of the managers of its $20 billion-plus endowment and the university’s palpable embarrassment in responding to the outrage of some alumni. Two particular managers each received approximately $35 million for 2003, which we know because they are the most highly paid employees of Harvard, as revealed in its tax filings. In all, the top five investment managers received approximately $100 million.
After the outcry, Harvard reduced its compensation, and the investment management team left.

ANOTHER ANTITRUST ELEMENT: This article about the BAR/BRI suit and settlement neglects two facts well-known among law students. First, there's always the Pieper alternative! More importantly, BAR/BRI's market dominance has a peculiar network effect due to how the bar exam is scored. As De Novo guest-blogger Cathy Gellis pointed out,

Apparently if too many people get a question wrong, [the exam graders] won't count the question and so everyone will end up with credit for that question in their scaled score. Theoretically, then, BarBri can game the system. In fact, it probably does game the system - even if not purposefully. Since so many people take the review course, if it doesn't cover a certain topic then lots of people may resultingly get that question wrong, perhaps in great enough numbers to void the question. So in a sense, BarBri by its very existence may well determine what you'll need to know for the bar.

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

What makes a rampage killer?

I don't know. I haven't done any studies, and I don't know much about the topic.

But I can't help but identify Cho Seung-Hui with Wayne Lo, the killer who rampaged across my college campus (Simon's Rock College of Bard) in 1992 and left two dead, two permanently disabled, and a number of others wounded.

Both are first generation Asian immigrants (Lo is Chinese), coming to the US at a young age. Both, while in college, fell into some sort of depression, began espousing and glorifying violence, and committed violence in the months leading up to their respective shootings. Both were outsiders at their schools, and loners in general. In Wayne's case, his writings before the shootings and his statements afterward indicated that he wanted to rid the campus of sin, homosexuals and drug-users. Cho, similarly, railed against "rich kids", "debauchery" and "deceitful charlatans" on campus.

There are other things that probably are incidental but I can't help but notice: both seemed to be fans of guns, both played basketball, both were loners.

Of course, by pointing out their Asian heritage, to some people I might be running the risk of crossing the line into racism. For example, see Yen, Rhoda J., Racial Stereotyping of Asians and Asian Americans and Its Effect on Criminal Justice: A Reflection on the Wayne Lo Case, 7 Asian L.J. 1 (2000). Ms. Yen makes the argument that Lo's Asian heritage was something that may have predjudiced the criminal justice system against him. While I understand Ms. Yen's argument that perhaps the prosecutor or the investigators may have used racial sterotypes in their building of a case, I find it difficult to see how that may have materially affected the outcome, in that there was no question of fact as to whether Lo did actually go on a killing spree.

Either way, it is not my intent to say that these killers are who they are because of their race... I would no more argue that their rampages were caused by their race than it was by their shared enjoyment of basketball. However it is still interesting to me that they are Asian, which seems to be a significant exception to the general rule that mass killings are carried out by white males (there have also been a few others, for example Gang Lu in Iowa). Across the board, college shooters seem to be males under some pressure for success (academic and/or sexual), which would seem to include many Asian males (Which is, of course, the Model Student stereotype that Yen argues against). Having known Wayne and seen what led up to the murders, the VT case jumps out at me because of the similarities. Lo was very smart (as was everyone at Simon's Rock, a college that took students after their sophmore year of hich school), as well as a brilliant violinist who was under a lot of pressure from his parents to succeed. I am curious to see if Cho was under similar pressures to Lo as we learn more about him.

A large dissimilarity between Cho and other cases is that he killed himself. Most mass shooters, like Lo, want to read their headlines in the morning and as a result do not kill themselves. Cho bucks that trend.

I have no real thesis here... simply working through my thoughts after learning of this horrible tragedy. Years ago I might have been seriously affected by a shooting like this. I am, in a way, heartened that after 15 years since Simon's Rock I am able to both recognize that a tragedy occured in Virginia and feel for the school, the students, and the families and friends of the deceased, and at the same time can somewhat put it in perspective. Thirty-three is, after all, less than the daily death toll in Iraq. But if one of those thirty-three is your loved one, that perspective will never fully be there. While the time is long past where I couldn't get through a day without thinking of Galen. I still miss him greatly, and more so when an event like this triggers memories of what he went through. Everyone at VT is in my heart and thoughts, and deep condolences for their loss.

Posted by Dave at 01:53 PM | Comments (2) | TrackBack

April 15, 2007

Quotent Senators

I was having a bit of a writer's block for this week's quote until I saw PG's post below re Ted Stevens. This Friday Sen. Stevens spoke at our law school. While I disagreed with almost everything he said, it was clear why he has been in the Senate for so long. The man has the gift of gab. At the end of his speech, Sen. Stevens said:

"I am reminded of a story of a man who decided to go out to a bar to drink with his friends. He came home late and didn't want to wake his wife, so he tried to open the door himself. He kept trying to get the key in, but it just wouldn't fit. Sometimes this happens when you're in that state. He leaned like this, to try to open the door. Just then his wife opened the door and he fell down on his face. The wife asked, 'Well, what do you have to say for yourself?' To which the man replied, 'In light of the current circumstances, I'd like to dispense with any prepared remarks and take questions from the floor.'"

On a related note, I don't think Alaska will be supporting alternative energy any time soon.

Posted by Armen at 11:51 PM | Comments (0) | TrackBack

In Fairness to Sen. Ted Stevens

The gentleman from Alaska took a lot of ribbing for his peculiar explanation of why network neutrality was a bad thing, so perhaps some of that mockery should be spread to the Associated Press. A Friday article about proposals to scrap the current internet structure and start over featured the following: "No longer constrained by slow connections and computer processors and high costs for storage, researchers say the time has come to rethink the Internet's underlying architecture, a move that could mean replacing networking equipment and rewriting software on computers to better channel future traffic over the existing pipes." [emphasis added]

Posted by PG at 05:49 PM | Comments (1) | TrackBack

April 13, 2007

University Presidents Praise April 15

OK, so it's just a coincidence that the two educational institutions with which I'm most closely associated both received enormous gifts this week -- after all, you can't count a gift given after December 31 for your 2006 return.

On Thursday, the University of Virginia announced a $100 million gift to establish the Frank Batten School of Leadership and Public Policy. "Batten's is the largest single gift in the history of the University and brings the total raised in the current $3 billion Campaign for the University of Virginia to $1.290 billion."

But that looks paltry in comparison to Columbia's Wednesday announcement that "92-year-old alumnus John W. Kluge has made a $400 million pledge to the University, all designated for financial aid to undergraduate and graduate students. The Kluge gift is the largest ever devoted exclusively to student aid and the fourth largest ever to any single institution of higher education in the United States, according to the Chronicle of Higher Education."

Not having been well-suited to federal income tax class, I'm not clear on how such large gifts get deducted; presumably you have to report how much you've actually given in a particular year, and cannot simply get the deductions based on the pledge. Given the rescission of large pledges at more unfortunate schools, this is a necessary policy. Take Florida International University:

A Miami entrepreneur has withdrawn a $20-million pledge to Florida International University's new College of Medicine, university officials have announced.
Herbert Wertheim, who is chairman and chief executive of a company that manufactures optical instruments and chemicals and who was also a trustee of the university until he resigned in November, said he had asked Modesto A. Maidique, president of Florida International, to allow him to defer the payments of his pledge. He wanted to make the payments over the next three years, instead of in an immediate lump-sum payment, to save up to $6 million in tax deductions.
University officials rejected the request. In a letter to Mr. Wertheim, Mr. Maidique said that the institution needed the $20-million payment now, so that it could qualify for a $20-million matching grant from the state. The money was to be used to construct a new building for the College of Medicine, as well as for scholarships and professorships. Mr. Wertheim then withdrew his pledge.

Posted by PG at 12:38 AM | Comments (2) | TrackBack

April 12, 2007

Break Another Little Piece of My Door

Oh, to be writing an exam about press rights again...

[Port Arthur Precinct 8 Justice of the Peace Tom Gillam III] will be seeing a different side of the bench on April 23, as he makes an appearance as the plaintiff in a case filed against a local blogger.
Gillam filed a legal case Wednesday morning in the 58th District Court against Philip Klein, said Brent Coon, one of Gillam’s two legal representatives.
"Philip Klein recently stated on the website 'Southeast Texas Political Review 2007' that Gillam recently engaged in an inappropriate sexual act with a woman at the (Port Arthur) courthouse," a statement released Wednesday by Coon and Beaumont attorney Gerald W. Eddins on Gillam's behalf, read. [Question: what would be an appropriate sexual act in which to engage at a courthouse?]
"Klein further stated in the same article that an employee walked in on Judge Gillam during the alleged act, became upset and left the courthouse in a manner that caused a glass door to break. This story is patently false, malicious and defamatory."
Coon said Gillam is seeking unspecified damages from Klein and Klein Investments, Inc. of Nederland for the "damage done to his reputation and good name of his family."
The judge's version of how the glass door broke is reported here. Personally, I just want to sue SETX Political Review for inflicting emotional distress through heinous web design.

Another great fact pattern, albeit one that is unlikely to survive under American law: a British judge has put a gag order regarding the name of a pedophile and child pornographer, on the ground that publicizing it would have a negative effect on the convicted man's daughters. Speaking of sex offenders, there's a trashier version of The Graduate playing in Pennsylvania.

Smith said Wednesday she didn't encourage the [then 14-year-old] victim to skip school. She said he dropped out to pursue a Spanish rap career but "that never happened for him." The affair fell apart in 2004 when the [then-17-year-old] victim and Smith's teenage daughter began developing feelings for one another. Those feelings later evolved into a physical relationship and Smith's daughter became pregnant. Smith, a native of the Bronx, N.Y., disapproved of the relationship and notified police after learning of the pregnancy. Police conducted an investigation but filed no charges against the teen because there was less than a four-year age difference between the victim and Smith's teenage daughter. It was through that investigation police learned Smith was having sex with the victim and she was charged in April 2006.
Meanwhile, the British tabloids may be learning not to settle before a thorough discovery period, and we finally can know that ... they really are using those library record subpoenas, albeit for the internets rather than for books.
Posted by PG at 12:32 AM | Comments (2) | TrackBack

April 11, 2007

Rainbow Law Center

After an amazing pre-law life and a well-blogged three years of law school, Denise Brogan is shuttering Musings on Life, Law and Gender in order to focus on her next venture, which "is to work with my darling spouse on starting up our law firm -- Rainbow Law Center, PLLC, located out of Ann Arbor." Best wishes to her and her wife in this new adventure.

Posted by PG at 11:46 PM | Comments (1) | TrackBack

Last Minute California Clerkship

An advertisement for a federal district law clerk:

United States District Court
Central District of California

Grade Range: JSP 11 - JSP 14
Salary Range: $58,262 - $127,562
Closing Date: Open Until Filled
No. of Vacancies: One (or more)

United States District Judge is seeking a full-time law clerk to assist with highly complex RICO death penalty case. The Law Clerk will work in the chambers of the Hon. George H. King in Los Angeles, but will also assist other judges in Los Angeles, Santa Ana and Riverside as portions of the case are transferred for separate trials. Duties of the position include substantial research, writing, motion work, case management, and assistance with trials. This position will require travel to working in the Santa Ana and Riverside divisional offices. Travel will be required to the divisional offices.

I'm sure it's happened before, but hiring a law clerk -- particularly one with the excellent credentials requested in the portion of the job posting that I did not quote -- to work on a particular case struck me as very odd.

Posted by PG at 03:21 PM | Comments (0) | TrackBack

April 09, 2007

In Essentials Liberty, In Non-Essentials Unity, In All Things Respect

Mediocre Fred finds the true meaning of Easter in the placemats at a family restaurant:

The place mats are an amalgam of ads for local businesses. ... Underneath the ads is the cheery admonition, "These advertisers are your friends and neighbors. Please use their services." And even though I don't live there, I felt wrapped in the warm embrace of friendly neighborliness. And my BLT hadn't even come yet. * * *
This one was for the Covenant Moravian Church. I wondered briefly why a church would take out advertising on a place mat, and then I saw their slogan.
"In Essentials Unity, In Non-Essentials Liberty, In All Things Love"
It blew me away. Think about it for a second: Isn't that a great organizing philosophy for a church? For that matter, on a very general level, isn't it a great organizing philosophy for a society? Stand together on the things that matter, let everyone go their own way on things that don't, and always, always treat one another with love. It would work at least as well as anything else we've come up with, wouldn't it? I don't know if that slogan is unique to that church, or to their religion, but it's brilliant. If it did not entail a two-hour drive on a weekly basis, I think I'd have to give that church a try. It certainly put me in the right frame of mind to celebrate the Resurrection; I think Jesus would surely have approved of the church's slogan.
"These advertisers are your friends and neighbors." Yes.

I can see how St. Augustine's words are a great organizing philosophy for a church or religious movement, and so they are quoted by Joe Carter of the Family Research Council in distinguishing between the things of this world and those of the next with regard to political issues.

Those of us on the religious right should adopt a similar principle and clearly define the boundaries between what is essential and what is non-essential in matters of policy and politics. Protecting the sanctity of innocent human life and defending the traditional definition of marriage are clearly essentials. Those matters are based on principles that can be clearly derived from the Bible. Other issues, however, are less opaque. For example, can someone truly be on the "religious right" and not support the war in Iraq?
The fact that question can even be asked shows how we've muddied the waters. While I personally think that, on the whole, the war was morally justified and a necessary humanitarian intervention, I can respect those who disagree. Their view may be as rooted in Biblical and conservative principles as, I believe, is my position. We should be careful where we draw the lines of political heresy.
However, I do not think that this is a good motto for a society, at least not one as diverse as ours (or Europe's, or India's...). I'm troubled by the idea that liberty attaches most to the things that don't matter. For example, I imagine that Carter would say that religion matters tremendously, yet would want to have equally tremendous liberty in that area. Similarly, he probably thinks that the exact score one must receive on an exam to become a physician, or on which side of the road one drives, is of little import, yet it is in matters like that that our government or quasi-governmental private entities are most enabled to regulate.

My view on this might be rather too strongly shaped by having studied constitutional law, which nowadays seems to come down to: liberty for the matters closest to conscience; regulation for matters of the market. The government cannot force you to pledge allegiance to the flag, or have to sit in a classroom during a teacher-led prayer, or restrict your sex life to people of the opposite sex, but it can decide whether you may consume your own wheat or your neighbor's marijuana.

The closer you are to people, the more St. Augustine's motto applies, and so it is an excellent one for any couple getting married: in essentials unity, in non-essentials liberty, in all things love -- with the caveat that you work out early on what constitutes an "essential" for each of you. I've never been a formal member of a church or religious group, so I don't know how well it works in that larger setting; presumably within the bounds of the things for which one joins a church, i.e. some common or overlapping set of beliefs, it is useful and even necessary. For our society, however, I offer the title of this post as a more apt organizing philosophy. We must be unified in non-essentials for an orderly, functional society, one in which people submit to properly constituted authority about most of the practicalities of daily life. We must be at liberty in essentials for a freely and fully human society, one in which people make their own decisions about what they think and believe and how they manifest their consciences. And we must respect the inevitable differences of opinion about what is essential, what non-essential, and where we should unify on the latter. Giving the last word to Carter:

As a matter of political liberty I believe it is important that we support such issues as prayer in schools and public displays of religious symbols. But I can't imagine that on the Day of Judgment I'll hear, "Well done, good and faithful servant--you have faithfully fought to keep the Ten Commandments in the courthouse." More likely we'll all be asked why we didn't spend more time concerned about our neighbors in Darfur or fighting the pandemic of AIDS. Perhaps we should rethink our priorities and put the first things first.

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MacKinnon on My Mind

A friend who is choosing among several excellent law schools asked me what I thought about UChicago versus Northwestern. In favor of the latter, I pointed out its location; for the former, not only its greater prestige but one of the factors behind that, i.e. its professors. The post is lost (alas for posterity!), but I remember visiting Chicago and finding Cass Sunstein's administrative law lecture so amazing that I blogged about it at En Banc. I also mentioned Posner and MacKinnon to my friend, describing them respectively as "a 7th Circuit judge" and "notorious feminist."

MacKinnon inevitably came to mind again when I read Heart's post, "Another Gang of Boys Rapes Teenager, Films Scene and Sends Footage to School Friends," in which she pastes a Australian news story and says, "Tell me with a straight face, somebody, that this had nothing to do with pornography and its [e]ffect on these boys, and at least one of their grandfathers." (According to the article, "In angry scenes outside court yesterday, the grandfather of one of the accused said filming the alleged incident was wrong. 'Stupid, yeah, but they do it, [film] everything, they bash people, they're used to stupid things. Was she drunk? Prove it,' the man told Channel Seven.")

Heart's, MacKinnon's and other feminist anti-porn crusaders' belief that pornography causes people to reenact what they have seen -- and to film it themselves -- seems to me to be a somewhat chicken-and-egg problem. If there are societies in which pornography doesn't exist, I would be fascinated to find out what sexual practices they have. If you don't have a concept of the money shot as something you've watched others perform, then does the visual remain appealing? I tend to think it does; as impossible as it is to peel away societally-imposed ideas of what's sexy, someone had to find the idea of ejaculating on another person's face to be a good one, and enough other people had to agree, before it became a cliche. Now we read, "A third boy performed a sex act on her face," but it seems like something that could have happened even if these young men had never encountered pornography.

And I think there's something true in the grandfather's otherwise revolting outburst: this is a generation that films everything. I'd be willing to bet that plenty of the teenage girls who have filmed themselves in sexual ways, or have consented to such filming, haven't actually seen a great deal of hard core professional pornography*. But having turned on their webcams for them to speak earnestly about their Feelings, it seems less odd to keep them on to show their Doings. If your YouTube video of your band's performance didn't get many viewers, why not try to attract more attention by turning it into an underage orgy? (At least until the video gets pulled.) It's horrifying that what bothers Grandpa is this newfangled passion for filiming gang bangs rather than the gang bangs themselves, but it does seem to signal a difference between generations.

I'm not suggesting that pornography has no effect on people, especially teenagers whose concept of what is acceptable and appropriate is going to be shaped by what they see. Hell, beer ads that suggest the way to have attractive, sexually pliable women around is to buy lots of alcohol might have affected these particular young men. But it seems that you can be a vile rape apologist while finding sex films to be "stupid," so obviously a love for porn isn't the only cause of an objectifying mindset.

* From a small pop culture sample, I wonder if there's a gap between the acceptability of women's viewing pornography and their being in it. Without reflection, I can think of two popular comedies -- Sex & the City in the U.S., Coupling in the U.K. -- that featured women who were willing or eager to be part of a man's home video collection, but none in which women were consumers of pornography. I suppose that's why there are Tshirts that proclaim the wearer to be a porn star, but none that say, "I watch porn!"

Posted by PG at 02:24 AM | Comments (0) | TrackBack

April 07, 2007

Quotent Politicos

I apologize for the dearth of quotes in the past few weeks, but I was away in Australia. During the weekend in Sydney, the government of New South Wales held statewide elections. One thing Aussies (pronounced Ozzies) have in common with the Yanks is their utter distaste for politicians. The labour government in charge of NSW was described to me as roughly somewhere between corrupt and criminal (by SEVERAL different people). But they won an overwhelming electoral victory. Simply amazing.

The Aussies also share a collective ignorance about our own politics. They don't really understand the concept of a primary election...much like they don't understand the concept of a drip coffee. When I was in undergrad, a course on the Presidency had one reading assignment on how campaign donations and party elites determine the likely nominee of each party fairly early on during the election cycle. The Republican establishment seems to be rallying around Romney, but the Democratic one is a bit up in the air. In all honesty, once I start making the big bucks, I will donate the maximum amount to my candidate (Obama). I'm just glad that his fundraising is putting doubts to the conventional wisdom of an all but certain Hilary nomination.

This is a very long way of introducing my quote. When my classmate quoted this line, it took me 2 attempts to name the movie. In that vein, I won't name the movie but leave it up to the gentle readers.

"Listen, I'm a politician which means I'm a cheat and a liar, and when I'm not kissing babies I'm stealing their lollipops. But it also means I keep my options open. "

I love campaign season. Happy Easter, Passover, and Tax Filings.

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April 06, 2007

The Fun Quote Is Not the Same as the Holding

Having recently attended the Columbia Law Women's Association's annual Myra Bradwell dinner, I was feeling fairly well up on her story when I noticed her name mentioned in a TNR review of Belva Lockwood: The Woman Who Would Be President as part of their big Hillary issue (non-TNR subscribers can read the review here). Princeton historian Christine Stansell writes a good review of what sounds like an excellent book, but either due to her own error or to biographer Jill Norgren's inaccuracy, Stansell misrepresents the reasoning behing the Supreme Court's decision that the Illinois bar could refuse to admit Bradwell.

It was a tough time to embark on a legal career. In 1873, the Supreme Court dealt a stunning blow to women lawyers in Bradwell v. Illinois, which upheld a lower court's ruling that the Illinois bar could refuse to admit Myra Bradwell, a Chicago attorney who practiced law with her husband (both were active campaigners for women's suffrage), on the grounds of the timidity and the domestic nature of the sex. The situation was uneven and complex: a few state bars had admitted women, and by the time Myra Bradwell's case reached the Court, the state of Illinois had passed a law granting all persons, regardless of sex, the freedom to choose a profession. But Bradwell had a strong negative effect in confirming powerful prejudices against women's ability to engage in legal reasoning and endure the nasty business of litigation.
Though the most memorable parts of Bradwell come from Justice Bradley's concurrence, the actual holding had nothing to do with female delicacy or similar nonsense. Rather, Justice Miller simply cited Slaughterhouse, which opinion was issued literally the day before Bradwell came down: if the 14th Amendment's privileges and immunities didn't protect the right to be a butcher, why would it protect the right to be a lawyer? These were state matters, and if the Illinois state bar had refused admission, Bradwell couldn't complain to the federal courts about it. Even the Illinois Supreme Court, as quoted in Bradwell, justified its decision by saying "that when the legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women," rather than by invoking women's timidity.

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Your Career Means You Don't Really Love Me

Last month, co-blogger Armen declared that he is "a firm believer in prenups," to avoid the eventuality under California law that "when she leave yo ass she gonna leave with half." As I was reading reviews of Leslie Bennetts's The Feminine Mistake: Are We Giving Up Too Much? that emphasize how women who stay home get screwed by divorce, two related thoughts came to mind.

First, this appears to be the sort of thing one would want to build into prenuptial agreements: a spouse who has worked solely the primary domestic caretaker should be compensated for forgoing career opportunities, whereas one who has worked outside the home and split domestic responsibilities need not be.

Second, inasmuch as some people refuse to get prenuptial agreements because of the underlying assumption that the marriage might end in divorce, this is an equally good -- or rather, bad -- argument to deploy against a person who works outside the home purely for reasons of economic self-interest even when the family unit would be better off if s/he did only and all the domestic work (think of Becker's labor specialization arguments*). If I go to work solely because I don't want to be left high and dry in case of divorce, thus subtracting most of my labor from what is available to the household, this is likely to have more impact on the marriage and related obligations than a single prenuptial agreement would.

* Speaking of Becker's ideas about households, he and his co-blogger Posner have some odd ideas about childrearing. Posner is more reasonable, albeit a little legally dubious:

It is an open question whether it makes a big difference whether the two parents are of the same or different sexes. My guess is that only if having parents of the same sex leads the child to be ridiculed by other children[,] are children raised in homosexual households highly likely to suffer, and the more common such households become, the less ridicule there will be.
Given that the topic was whether the government should subsidize marriage, Posner's concern about whether certain family types might cause children to suffer from their peers' ridicule shouldn't come into play, because the government could not decide which marriages were better (and worthy of subsidy) on that basis alone. After all, the courts have recognized that a white child with a black stepparent might suffer from ridicule, yet that is not reason for that child to be raised by two white parents instead, and presumably not reason to subsidize intra- but not inter-racial marriages. I realize that the question arose in the context of Tory leader David Cameron's proposal for Britain, but the Bush administration supposedly has considered similar measures, and Posner was commenting on the general idea, not just its specific application in the UK.

Becker declares, "I am persuaded that children raised by two gays or lesbians do worse than children raised by heterosexual parents, although the evidence is far too limited to be certain about this." He gives absolutely nothing to explain to readers what has persuaded him. If his belief is motivated by the sort of common sense invoked by a majority of the New York Court of Appeals, all right, but common sense isn't exactly a matter of persuasion; as Einstein put it, "Common sense is the collection of prejudices acquired by age eighteen." Saying "I am persuaded" implies that something or someone did the persuading, and I would be curious as to what made a Nobel Prize winning social scientist think that a position for which the evidence is not merely limited, but the little existing evidence not even tilting in favor of his conclusion, is correct.

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Roberts's and Miers's

I find myself in the odd position of agreeing with the Arkansas legislature about something: to wit, that when indicating a possessive for a proper singular noun ending with the letter "s," the proper punctuation is to add the same apostrophe and "s" that one would add to a proper singular noun that does not end with the letter "s." May Arkansas's non-binding resolution inspire a shift in style norms for all! (Via BTQ)

Posted by PG at 01:09 AM | Comments (0) | TrackBack

April 05, 2007

30 Cents to Free Your Music

From ZDnet:

EMI Group will soon sell digital music with better sound quality and no digital rights management restrictions through Apple's iTunes Store.
EMI's entire digital music catalog will be available in premium DRM-free form via iTunes in May, the music label said Monday at a press conference in London. Beatles tunes under EMI's control, however, are not part of the plan.
Higher-quality music files, which will play on any computer and any digital-audio player, will not replace the copy-protected EMI music currently sold through iTunes. Rather, they will complement the standard 99-cent iTunes downloads and will be sold at a premium: $1.29 per song.
Consumers who have already purchased EMI tracks containing Apple's FairPlay copy protection will be able to upgrade them to the premium version for 30 cents, EMI said. Full albums in DRM-free form can be bought at the same price as standard iTunes albums.
I would love to have been a fly on the wall when EMI worked out how much losing the chance to sell the same song multiple times to the same customer was worth. Apparently DRM-free songs also have higher quality sound -- something about increased bit rate = larger files = reduced compression. I think such compromises by the recording industry will only accelerate the trend toward online purchases and decrease illegal file sharing. The more willing the members of the RIAA are to offer music in popular formats at a reasonable price, the more sympathetic I am toward their lawsuits against people who engage in wholesale intellectual property theft, and the less likely I am to push my political representatives to revise copyright laws.

Posted by PG at 02:13 PM | Comments (1) | TrackBack

April 03, 2007

Theory and Practice

Staying In and Dropping Out and Worth a Post? and Maybe Not has collected more comments over a longer period of time than almost anything else on De Novo. The latest comes from "S," who asks, "Can someone give me some idea as to whether or not hating law school reflects realistically on whether or not you would hate the practice of law?" Jeremy's link to Scheherazade Fowler provides some answer to the question, though mainly in the form of ambiguities, as well as another set of comments over the last few years from frustrated law students.

Some aspects of law school are reflective of legal practice, and some are not. Legal research and writing, for example, are genuinely relevant to litigation practice, though they get shafted in most law schools. If S loathes searching for and reading cases and code to complete school assignments, S probably won't like having to do it for work assignments either. On the other hand, much of what you can do in law has very little parallel in legal education. Real estate attorneys, for example, seem to spend a lot of time revising contracts, which is not a task I've had to perform in almost three years of law school. Due diligence? Nope.

I would encourage anyone who is considering dropping out of law school after her first year to do her damnedest to get a job involving real legal work that summer. Work for free, if you have to, but it's worth the time to figure out whether anything in practice actually appeals to you. In this pursuit, a local general practitioner might be more useful than a large law firm; though you probably won't get to do work relating to securities and other expensive areas, they're unlikely to be easily within your understanding after only a year anyway. You at least can get a feel for what Real Lawyers do, and whether it's something you want to do too.

(I like much of legal education, so I spent my first law school summer as a professor's research assistant. Unless you want to go into academia and think it will somehow be drastically different than the schooling you hate, I don't recommend this job as a way to help decide if you'll complete your degree.)

Posted by PG at 02:39 AM | Comments (0) | TrackBack

April 02, 2007

Liberal Federalism?

Gar Alperovitz, a liberal/leftist professor of political economy at University of Maryland, recently penned a op-ed for the NYT where he seems to advocate for a breakup of the Union so that regional concerns may take priority over the concerns of the central government in Washington. He uses California's initiatives on global warming as an example of how a region of the country may have objectives that are out of line with the federal goverment objectives.

But the question that remains unanswered is: why would California be interested in leaving the Union over the environment? That California seeks to provide greater efforts on protecting the environment is not, in any way that I know of, hampered by the federal government's lesser willingness to deal with the issue. California may make whatever regulation of carbon emissions that it wants to. Further, if California's interest is to protect itself from global warming, they have an incentive to encourage other jurisdictions beyond their own to limit carbon emissions. If California did indeed leave the Union, pulling their electoral college votes and congressional representatives from the political spectrum in Washington would arguably have the efffect of lessening environmental protection in the remaining 49 states, which would be clearly detrimental to their interests.

in a similar argument from a conservative/libertarian viewpoint, Ilya Somin, a professor of law at George Mason argued over at Volokh Conspiracy that in light of a growing Republican majority, Democrats should reconsider federalism. Somin ponts to "the examples of No Child Left Behind Act, medical marijuana, assisted suicide, Terri Schiavo, and a host of other cases" as representative of issues where Democrats might prefer de-centralized control.

However, I again do not see the rationale here for why liberals would prefer decentralization of power. As for assisted suicide and right-to-die issues, decentralized control is already the norm. Oregon has an assisted suicide law, and it has been held to be constitutional. Terri Schiavo's case is certainly not an argument for decentralization from the viepoint of a liberal, in that Florida's attempt to bar the removal of the feeding tube was equally if not more conservative than those efforts by Congress.

In terms of No Child Left Behind, the effect of the law is only applicable to schools that receive federal funds. If a jurisdiction felt strongly enough about the dangers of that law, they can reject the federal funding. This would seem to me to be a significantly less drastic approach than rejecting the funds as well as completely rejecting any other benefits received from the federal government by backing out of the Union.

Which leaves medical marijuana. Well, I suppose that is an actual issue where federal control might actually compel a state with a liberal electorate to want to back out of the union, if they cared that much about medical marijuana (which by no means is it clear that this is a "liberal" issue.... while blue-state California is obviously pro-medical marijuana, blue-state New York has some of the greatest penalities in the nation for marijuana use).

However, I think it is counter-intuitive to throw away all the benefits a strong central government provides to the liberal viewpoint: effectively forcing more conservative jurisidictions to have higher standards imposed on them by the Constitution and Congress in the areas of environmental protection, civil rights, separation of church and state, and progressive tax policy and progressive (i.e. redistributive) economic and social plolicies.

The major debates we have on the federal level relate to the imposition of a "liberal" viewpoint on a reluctant conservative jurisdiction. The questions are NOT whether California or another jurisdictio can be compelled by the federal governement to ban abortion, have a "mandatory" death penalty, or forced school prayer. If the country did get to that point, then perhaps that might compel a liberal to abandon to the idea of a strong central government. As for the present, I'm not certain medical marijuana is enough to make most liberals want to give the union up.

Posted by Dave at 08:06 PM | Comments (0) | TrackBack

April 01, 2007

Good News, No Foolin'

Via belledame, word that Shaquanda Cotton has been released from a juvenile jail after being incarcerated there for a year -- part of an indeterminate sentence of up to seven years, with release at the discretion of the Texas Youth Commission -- because she shoved a hall monitor. Hall monitors are classed as public servants, assault on a public servant is a felony, County Judge Chuck Superville* thought Cotton's mother was incapable of helping her meeting the terms of probation (the same judge gave a white 14-year-old girl probation for burning down her own house), and so a teenager with no prior record could have been in a Texas Youth Commission facility until she was 21. Enough outrage was funnelled toward TYC officials, particularly through State Rep. Harold Dutton and State Sen. Royce West requesting that her case be reviewed, that she got an early release, though the DA isn't happy about it.

"We are glad she is getting out and are happy for her family, but we have concerns about the way it is happening," Lamar County and District Attorney spokesman Allan Hubbard said Friday.

"We sincerely hope Shaquanda has learned her lesson, and we do not see her in the judicial system again," Hubbard said.
Hubbard voiced his concern about public opinion and the concerns of lawmakers having influence on the justice system.
"A case has been tried in the court of public opinion," Hubbard said.
"We now apparently have a legislature that can insist a state agency release someone from incarceration," Hubbard said. "That is dangerous."
West repudiated Hubbard’s accusation.
"I am sorry that is their impression," West said. "What I did specifically was ask the commission to take a look at the case and make a determination."
Hubbard said he was told Friday by TYC officials that Shaquanda was "not ready to be released."
Although she had reached her [minimum] length of stay -- one year as of March 17 -- Hubbard said TYC officials said she had not made appropriate progress in behavior and correctional therapy.
"They have four levels in each of three categories," Hubbard said. "Youth must reach level four in all of them before they are considered ready for release."
Hubbard said Shaquanda was at level 4 in academics and at level 2 on behavior and level 2 on correctional therapy.
"It has been erroneously reported she received an extension of her time because of having an extra pair of socks in her room," Hubbard said. "That is not true."
"She received no extensions of time, but did not meet TYC release requirements," Hubbard said.

In bad news, however, the TYC has decided to mass-fire all employees with felony records, including those who have not been in trouble since their release. As the above demonstrates, "felony" can be over-inclusive. Even those who unmistakeably were Bad Guys at one time, however, are capable of redeeming themselves and using their experiences to help others. I'm skeptical of how much the average rehabbed former junkie can give a speech that will convince an auditorium of bored teens to Just Say No, but I think someone who can speak to a juvenile offender one-on-one about his own past history and how he turned his life around could be useful.

* Some have said that the mother had refused to agree to those conditions, but the judge himself did not state this. I confess to being a bit prejudiced against him, given the judge's apparent belief that Outside Agitators will cause rioting in the streets.

County Judge Chuck Superville says he fears for the community’s safety and is calling for the national media and other organizations to investigate the facts before drawing conclusions about the Shaquanda Cotton case.
The judge said a March 12 story in The Chicago Tribune unfairly painted the community as racist and a recent protest as well as the threat of future protests by organized groups with national media coverage could "spin this thing out of control."
Superville said he has refrained from commenting until now because of his position as the judge in the Cotton case, but that he believes he has a higher duty as county judge to maintain order in the community.
This reminds me irresistibly of Cartman yelling "RACE WAR!"

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