Blognoscenti

Friggin' Nader

2004-05-28T12:33:00.000-04:00

I can't believe what an egomaniacal ass he's become. Here's why.

Screening

2004-05-21T22:20:00.000-04:00

So I was recently sworn in as an honest-to-god lawyer. Please, hold your applause. To be frank, I wasn't surprised to see what an "event" it was, but I was embarrassed. The courthouse was filled with the families of the applicants, taking pictures, hugging, kissing. And don't get me wrong, I can understand why becoming a lawyer is, at first blush, seen as an achievement. But under scrutiny, the whole charade is exposed.

Let me start by saying that it's tough to do well in law school, any law school. There are so many smart people, so many competitive smart people, plus grading means, that it becomes difficult to set yourself apart. With that said, however, it is not difficult to do okay in law school. And getting into law school--some law school somewhere--is a joke. In fact, let's start with that. If you can complete the applications--or find or pay someone to do it for you--you will be accepted to some law school somewhere. Law school is not like med school. Many people who really want to be doctors simply aren't accepted to any medical school. But not law school. If you can pay the application fee, there's a spot for you somewhere. It might be number 600 in U.S. News, but you'll get a legal education.

So you get into law school, you either try to do well or just try to pass, and then you graduate. This is a big day where you wear an elaborate gown and hood (much fancier than the one in college) and get a juris doctor, despite the fact that law school is really just a glorified masters program. My buddy Jack spent seven years in school, defended his thesis, and wore the same thing to graduation that I did (or that I would have had I gone to my graduation) after spending a measly three years in law school. (That's another thing: Very few laypeople know that law school is three, not four, years.)

Now you have to take the Bar exam. Now, I understand that many people have a lot of difficulty with multiple choice tests, so I'm not going to go around saying that the exam is easy, because it's not. There's far too much material for it to be easy. But I will say this: It's entirely arbitrary. Laurie (a blognoscente) is thinking of practicing labor and employment law. Do you know how many labor and employment law questions appear on the Bar exam? Zero. But Laurie had to become a veritable expert in NY divorce law. So tell me: How does that exam demonstrate Laurie's competence? This example is itself arbitrary; there are many major topics not tested on the exam, and many minor topics overtested (e.g., wills, trusts, divorce, workers compensation).

The other thing about the Bar is that about 80% of first-time takers pass. That's a pretty high percentage. And who are those 80%? They're the ones who do well, or get lucky, on multiple choice tests. Note: Practicing law is not about taking multiple choice tests. In fact, if a client asked you a legal question, and you didn't research it before answering, that would probably constitute an ethical breach. Maybe that's going overboard, but only slightly.

So you pass the meaningless exam. Now you go for your character interview. This is a real joke. There's one of four ways this interview goes down: (1) your interviewer goes through your file in front of you and asks you absolutely nothing (my way); (2) your interviewer asks you a little about yourself, you have a pleasant conversation, you pass; (3) your interviewer bitches at you because your firm called you an asociate but your not because you haven't been admitted yet, you pass; or (4) you were convicted of a crime, your interviewer bitches at you, you pass. The Bar touts this interview, laughably, as a way to screen for character. Do you know a lawyer? Ask yourself: If s/he is passable, can you think up someone who wouldn't be?

Now the big day comes. You go to a courthouse with a hundred other applicants, you take the oath, and they swear you in. In the process, the judge tells you about how great attorneys are and not to take flash photography during the event.

But here's the thing: Lawyers aren't great. We're like everyone else, some good, most mediocre, some awful, some criminal. But all these things that we went through to be called a lawyer are deceiving laypeople into thinking that there really is something special about lawyers. "You must be smart, you had to pass that test." "I hear law school is really hard." "So you have to take an oath to be a lawyer?" "They screen out criminals, right?" Don't get me wrong, most people--not unjustly--think lawyers are snakes and liars. But we keep holding out these screening procedures and saying, "Lawyers are screened, the bad ones are weeded out, we're professionals." But we can't keep saying that. And to the extent we're not saying it, we have to stop implying it or whatever we're doing. We either have to stop holding ourelves out as something special or else actually use these screening procedures to screen meaningfully. Don't accredit every law school; don't let acceptance to some law school somewhere be automatic; forget multiple choice and make the Bar exam meaningful; talk to people during the character interview about something relevant.

I know readers are going to be up in arms at the suggestion that some people shouldn't have the opportunity to go to law school. Look, I'm not saying we should accredit five law schools and admit a hundred kids to each. I'm not even saying that the vast majority shouldn't have the opportunity. And the opportunity certinly shouldn't turn on a test as useless as the LSAT. If you work hard in college, demonstrate that you want to be successful in life and are willing to work for it, there should be a spot for you in whatever program you want. But if you slack your whole life and couldn't care less what you do and want to go to law school because your parents have a lot of money and it's the easiest way to avoid work for three more years, well I'm not going to cry for you. My vote is to follow the med school model. Query why one's livelihood, liberty, wealth, and possibly life is less important than one's health. If we're going to call ourselves professional, we'd better start acting like it.

The Rehnquist Court: Its Record and Its Legacy

2004-05-20T22:26:00.000-04:00

Good CLE panel last night. The panel consisted of Ken Starr, Burt Neuborne (prof. at NYU, former Nat'l Legal Dir. of the ACLU), Charles Cooper (Cooper & Kirk, former Rehnquist clerk and Ass't AG for the Office of Legal Counsel), and Martin Garbus (Davis & Gilbert, trial lawyer). Judge Reena Raggi (2d Cir.) moderated. Below is a sketch of what was discussed. I couldn't get it all, so the highlights (to my mind) are below.

RR: To begin, why doesn't each panelist discuss his impressions of this Court; its general, defining characteristics.

KS: This Court should be called the O'Connor Court, not the Rehnquist Court. Various opinions demonstrate her moderate influence, for instance the Univ. of Mich. affirmative actions cases. The Court has also been very moderate in approaching freedom of religion and the Establishment Clause.

Federalism is the signature issue of this Court. [Listing various cases.] This is also a very pro-free speech Court. Critics of this Court are too quick to overlook the richness of its jurisprudence.

RR: If it's so moderate, BN, why can't they all agree on anything?

BN: It's not a moderate Court, it's a paralyzed Court. This Court has gone unchanged for so long that it's like being in grade school. In grade school, whatever you were labeled early, it stuck. So if you were labeled a slacker early, it sticks because the people never change from grades 1 through 12. Each Justice now has predictable role and s/he plays it in predictable cases. This is a Court of 9 chambers that group loosely into coalitions of votes, thereby leaving the outcome to Kennedy and O'Connor. An interesting political science question is whether a Court should go unchanged for so long. Stability vs. being forced to reevaluate ideas.

KS is right that we can't call this the Rehnquist Court. Even though he stamped his imprint on the federalism cases, he was often in dissent in his early years as Chief, when it was really the Brennan Court. Now it's the Kennedy or O'Connor Court.

I also agree with KS that this Court is moderate as a matter of numbers, but it's not moderate by choice. I think the right and left would both go much further, but they can't because they know they need to persuade one of the two centrist votes.

2 major jurisprudential shifts we've seen in this Court: (1) Rise of textualism. Before this Court, the text was not the driving force behind interpretation. While Rehnquist played a major role here, this shift is mainly attributable to Scalia. And (2) the collapse of the idea of deference, and I think Rehnquist is going to regret this. I remember footnote 4 in Caroline Products, where the Court said that it defers to legislatures except when it believes that there's been a failure of democracy. This Court doesn't give deference to anyone but the Boy Scouts (not even the PGA).

There's been surprising continuity on this Court. These Justices have shown us that precedent really does matter, and that they care very much about their craft. There's been remarkable continuity in the First Amendment area, and this might be the strongest First Amendment Court in history. Also continuity in the area of equality, for instance a majority embracing Justice Powell's opinion in Bakke. There's been fundamental continuity.

Finally, I think that Bush v. Gore is the single greatest failure of the Court in my lifetime, its lowest point. And it's a testament to the Court that it still thrives even after Bush v. Gore.

CC: I'd like to begin by talking about federalism. But I approach this topic from a very controversial standpoint. I believe that the law should mean what it was intended to mean, i.e., I'm an originalist. I don't believe in the living Constitution theory. I don't believe, as Justice Brennan put it, that we should ask what the "words mean in our time." This is just a license for judges to impose their views and values onto society. The law today is what 5 Justices say it is. This Court is a political body, not a judicial one, just like prior Courts. Its decisions depend on the results demanded by majorities.

The bulk of the Court's federalism cases restore the original meanings of, for instance, the Commerce Clause, and the Tenth and Eleventh Amendments. Still, this Court sometimes goes wrong when it tries to achieve its preferred outcome.

Read the Eleventh Amendment. It's command is directed at the "judicial power," including the Supreme Court. The Court has held, among other things, that it is not bound by the text of the Eleventh Amendment. That it was designed to overturn Chisholm. [Traces jurisprudence.] The majorities were correct in these cases, limiting the power of lower federal courts and state courts. But the text of the Eleventh Amendment does not protect the states from the Court's own power. The Court has simply asserted that its appellate power over state court decisions is unaffected by the Eleventh Amendment, as it is inherent in the constitutional design. So the Court here did exactly what the Eleventh Amendment commanded it not to do.

MG: This Court's decisions have been most significant in the area of federalism. [He then outlined the facts of Morrison, Garrett, and Lopez, but didn't really draw any conclusions or make a point. He kept referring to VAWA as the "Women Against Violence Act," or "WAVA."]

RR: Is CC saying that, in its federalism cases, this Court has upset or restored the appropriate balance of power?

KS: The Court is struggling to find a limiting principle. In Lopez, how could the Court strike down the Gun-Free School Zones Act? O'Connor and Kennedy were looking for a limiting principle, and they weren't presented with one. See Kennedy's concurrence. The same thing happened in Morrison, no limiting principle. If the Court had embraced an "effect on the economy" theory then Congress could pass a national divorce law, or a national child custody law. This Court wants to respect the traditional roles of states. I do think though that the Founders knew when they created judicial review that judges would exercise their own wills.

BN: Going back to CC's originalism point. Looking back--to slavery, to the subjugation of women, etc.--I'm not sure originalism is something we want to go back to. So even if originalism is possible, I don't think we want to embrace it. But in any event it's not possible. There's no such thing as text that gives you a clear answer. It's a false god, there are no clear answers in history or text (or both). For example, whose intent counts? The ratifiers of the Constitution? Those who elected the ratifiers? Those who debated the Constitution?

Look at the Eleventh Amendment. It was written to overturn Chisholm. It was not meant to be read literally.

What do you use to find a right answer besides discretion; what do you replace discretion with? Originalism is just a covert way to smuggle values into interpretation.

Is there a theme in this Court's jurisprudence? Well, it's not states' rights. In preemption cases, this Court often ousts the ability of the states to act. If I had to name a theme it would be this: Government power is always under the other shell [i.e., as in Three Card Monte], e.g., "Sorry, you should've used the § 5 power," "Sorry, the states need to act in this area."

September 11 brought the Rehnquist Court to an end, in that it brought federalism to an end. After Communism and the Berlin Wall fell, why did we need government? Government was supposed to get out of the way. After 9/11 we realize how desperately we need government, and this affects the courts.

RR: What does campaign finance say about the Rehnquist Court?

CC: First I want to address BN's argument that there's no such thing as originalism. Yes, true intent is rarely clear, but it's also true that it's rarely completely up for grabs. I can't find one SCOTUS opinion that doesn't embrace the idea that the intent of the Founders or legislature is what counts.

As to campaign finance, I, along with KS, helped challenge the law. I challenged the law because it was inconsistent with the First Amendment, especially Title II--prohibiting advertisements with soft money within 30 days of an election--which I worked on specifically. O'Connor determined the outcome, and it was inconsistent with the dissent she joined in Austin v. Mich. State Chamber of Commerce.

KS: In its opinion, the Court showed deference to Congress where it felt that the issues required such deference. What people believe was O'Connor's part of the opinion is remarkably brief, especially in light of the opinions of the lower courts. There was a suggestion that the Court was washing its hands of this case. Now, guys like Soros have become very important speakers in our community.

BN: I think it's great that KS now thinks we shouldn't criminalize politics.

I helped defend John McCain in this case. The Court's decision was attributable to two things: (1) It was very well lawyered. Buckley went up on a bare-bones record. This case was just the opposite; it had a voluminous record, and I think the Court was affected by the factual defense. (2) It was a cry of despair by the Court. There was a spiraling sense that politics was out of reach for the normal person because of money. We've had years of success removing every barrier to voting, yet voting continues to decline. 48% of the population voted in the last election. It's more relevant to the average person to get a discount at Wal-Mart than to vote, because there's a sense that a vote is meaningless.

As law, the opinion is not strong. I know exactly how Breyer and O'Connor split the opinion: Each wrote every other word.

MG: Democracy was recently on the table at a forum in Beijing. China is a benevolent dictatorship; it's grappling with the problem of what to become.

To the Warren Court, race was the most important issue. To the Burger Court, it was an important issue. To the Rehnquist Court, it's only an important issue when a white person is affected by affirmative action.

RR: How does Brown square with this Court's affirmative action cases?

MG: O'Connor embraced Bakke more than I expected her to. The Michigan cases were a shift from the Court's precedent here. Judge Tatel is coming out with a must-read article on school desegregation.

CC: I want to respond to BN's point that money shuts the little guy out of politics. The portion of the campaign finance opinion dealing with Title II exacerbates the problem that BN identifies, in that it applies to voluntary organizations like the Sierra Club and the NRA. The only way the little guy can be heard is by amplifying his voice through such an organization. Other forms of amplification, like the media, are generally prohibitively expensive.

On to school desegregation. If shool authorities have abided by 40-year-old remedial decrees, then the federal courts should terminate those cases. They can't stay in the federal courts forever. At some point, we have to return the authority to the schools.

MG: No Court but this one would have come out with Lopez and Morrison. The limiting principle is the rational basis test, and it's been the limiting principle since Wickard.

KS: I argued the Oklahoma City case, giving authority over some schools back to the school board. One reason the court did so was that the newly elected school board was living up to its constitutional responsibilities. When it was all over, a black woman on the Okla. City school board thanked me for getting control bck in the school board.

The Court is not a political enterprise. That goes to the Court's core function. This Court has really been about caution and moderation. And this tradition of moderation has been given voice by White, Harlan, Cardozo, and Holmes, among others. It's a great tradition.

CC is right: Every Justice who's ever sat on this Court has been or is an originalist, even Warren. The meaning of the Constitution can change. For instance, commercial speech, symbolic speech--these are now included in the First Amendment though they weren't at the Founding. Scalia's point is to look for the reasonable meaning.

RR: How has Rehnquist himself changed over time?

BN: Look at his nondecisional activities. He's been an excellent steward of the Article III system and judges. He's also one of the better amateur historians to have ever sat on the Court. He's deeply committed to the Constitution.

He's changed in two ways. (1) It's easier for him with Scalia and Thomas on the Court. He can be more moderate. He doesn't have to beat a drum for a position because he knows Scalia and Thomas will do it. He can therefore be more centrist and more of a unifier. (2) He's matured, as Justices do. The world has become more complex to him with his years on the bench. He's become more moderate in most areas.

RR: Quick sum up. What don't I know about the Court?

MG: The Court is not political like Congress or the Executive. The law moors it. The Court pays homage to the law and doesn't bend it consciously or overtly.

CC: I agree with BN's observations about Rehnquist. I wouldn't have predicted he'd vote against VMI, or that he'd write Dickerson--that was a particular shocker. He's experienced a very real evolution. I also agree with Scalia's "original meaning." As in the Eleventh Amendment, the test is not the end-all be-all of original meaning.

BN: I don't think the Court is a political institution. The consensus of all judges is that when confronted with a case, the judge looks for precedent, and if she finds it, she follows it. If not, then she looks for a textual solution. No judge sitting wouldn't do those two things first. If a judge can discern the intention behind the text, then she'll follow that. But these three methods often leave the judge without a clear command.

Dick Posner says that a judge is like a platoon leader getting commands from the general's staff over a walkie-talkie. When the commands over the walkie-talkie aren't clear, the platoon leader still has to do something, he can't just stop acting until he can clearly hear the next command. Judges use values as tiebreakers. I don't know what percentage of the time that happens, but I think that if a judge has a clear answer, the cae wouldn't get to the Court. And I don't know what else besides values can be used as a tiebreaker.

KS: Keep your eye on Breyer and the rise of pragmatism on the Court. Pragmatism is also very attractive to O'Connor.

Ques.: How has 9/11 affected the Court?

CC: 9/11 is going to spawn a lot of business for the courts. None of the pre-9/11 federalism cases would be decided differently today.

BN: Printz would definitely be decided differently today. Do we really think that in a post-9/11 world, the federal government can't commandeer state police to fight terrorism, for instance, if feds needed help interrogating suspected terrorists?

KS: If 9/11 has reshaped the way the Justices think, then it argues in favor of deferring to the Executive in the Gitmo cases, Hamdi, and Padilla. But in fact, I think this Court is going to be more assertive of judicial power than the Court of 50 years ago, see Eisentrager.

Ques.: Was Bush v. Gore an aberration or rather illustrative of what this Court will do when it is without precedential mooring?

KS: Phase I of Bush v. Gore was a unanmous vacatur of the Fla. Supreme Court's decision. In dissent, a judge on the Fla. Supreme Court said that, as to Phase II, the majority or the Fla. Supremes had intruded into the prerogative of the Fla. legislature.

BN: Six members of the Court didn't join the concurrence saying that the Fla. Supreme Court couldn't review the Fla. legislature in this area.

I believe that the Court was afraid that the tiebreaking systems would fail. It felt that it needed to answer the question before it got to Congress. It was afraid the problem would spiral out of control. This Court's two big themes are federalism and trusting the democratic process, and they did neither here.

CC: What would the Court had done if the parties (i.e., Bush and Gore) had been reversed?

BN: I believe the Court would have come out the same way. If I didn't, that would say something terrible about the Justices. O'Connor and Kennedy wanted to prevent this thing from spiraling out of control.

MG: I disagree with BN, I think it would have come out differently.

A strange thing happened on the way to Cafe Abir.

2004-05-19T21:47:00.000-04:00

Most nights, after I leave work, I ride busline #5 to Cafe Abir on the corner of Divisadero and Fulton. It became a habit when I started to spend my evenings writing an article after I got back from Iraq. Now I just go to read and people watch for a bit. Chambers gets a little clausterphobic. Anyway, on the bus tonight, I sat next to some woman reading Philip Roth's "Portnoy's Complaint." I really like that book, but I didn't bother mentioning it. I hate it when people speak to me on public transportation, which (in my opinion) includes flights on either Southwest or America West airlines. Anyway, I quickly got absorbed in the new personals listings for pre-op transvestites in this week's San Francisco Weekly: Tammie is still looking for the #1; Trish is willing to "entertain" for a night in Oakland if the price is right; and, finally, Tonya wants a lover and a best friend. Why, you might ask, do an inordinate number of San Francisco shemales choose names beginning with Ts? Unfortunately, I don't know why. In any event, I climbed off the bus tonight at Divisadero and Portnoy's Complaint followed. I didn't pay any attention to this as most people get off at that stop. Alas, she also turned on to Fulton avec the Billthrill. Not intrigued? Read on, dear blognoscentus. I ordered my usual coffee thing at the counter and sat down, and who should I notice ten-minutes later sneaking surreptitious looks across the room from moi -- Portnoy. I didn't play the were-you-looking-at-me-when-I-looked-at-you game, but this didn't stop her from leaving a note on my table when I stepped into the bathroom half-hour later. The note read: "Are ya' gonna make this kitten prrrrrrrr, you dirty dog?" So, what did the Billthrill do? You guessed it: he dropped the leash, kicked down the kennel's doors, and let the dogs have their day. If my peeps in NYC can hear the rumble of satisfaction coming from the West, rest assured that its northern California's feline population. So, Portnoy is the strange thing that happened to me. But here's the rub, it's a giant lie. This kind of thing is not strange at all for me. It happens at least a few times a week.

Same-sex marriage and residency requirements

2004-05-19T12:30:00.000-04:00

The Governor of Massachusetts, in a transparent attempt to woo conservative voters, has decided to revive an obscure 1913 state law -- originally passed to prevent interracial marriages -- to bar non-resident same-sex couples from taking advantange of the state's new marriage law. Do you guys think this law would survive a constitutional challenge (note: Mass. has never refused to marry "foreign" hetero couples)?

The interesting thing to me about this whole same-sex marriage debate is -- and i think this has been said elsewhere -- that gays have been able to make civil unions the "moderate" political position. they've been able to frame the issue such that politicians and voters who previously would not have even considered civil unions to be kosher now think that it is a reasonable compromise if the alternative is, gasp!, to let gays marry.

don't sweat the small stuff (and it's all small stuff)

2004-05-19T07:43:00.000-04:00

Well my brother said that possibly the blog had taken a very serious tone. It actually seems like a good mix to me as far as i've read. Although the reference to Joe Versus the Volcano, frankly i thought was inappropriately casual. Fucking Mike. I got the heading for this post from a bathroom reader (nothing like a good book on the pot), and it really struck me. Mostly because i can't really find any small stuff. Everything seems so heavy today, for good reason, death, torture, war aren't what Disney pictures are made of. I'll correct that, as some may argue that they were based on stories of death and torture, just let the reference go people. Anyway, the title struck me, it struck me as i struggle to deal with how much i should let these undescribably sad world events consume my personal life. Finding a little peace in the eye of the hurricane seems deserved, and i doubt anyone would frown upon someone else being happy despite the events at hand, but how happy is acceptable? The big question then becomes once you start allowing yourselves to put those events on the side, how far to the side do you put them. Certainly a lot of changes need to be made, and that requires some consumed and motivated people. But sometimes i wish i was the poop. Enjoy the day!!

Wall Street Joke

2004-05-17T21:18:00.000-04:00

Is anybody who read this morning's editorial about the applicability of the Geneva Convention to Abu Ghraib prisoners convinced? It sounds like crap to me. How could the stuff that happened at Abu Ghraib NOT violate int'l law? It doesn't seem possible to me. I've never seen any source of int'l law that says countries agree to allow low-grade torture in any circumstances. Has anybody seen something that permits torture?

Ferrara gets reasonable: I'm worried

2004-05-17T14:34:00.000-04:00

perhaps my fellow blog-a-lots have not noticed, but michael ferrara has gotten quite reasonable as of late. this is the man who once took his shirt off in the middle of constitutional law to demonstrate (unsuccessfully) the difference b/n men and women. i don't know if this development makes others nervous, but i'm deeply concerned. not all of us disliked your vitriol. indeed, i enjoyed your moments of borderline violent righteousness. are you growing judicious in your old age?

Commuting

2004-05-16T21:00:00.000-04:00

The Onion has some excellent tips for improving your daily commute.

This probably sounds goofy, but every day I am awed by the mass demonstration of productivity that is people going to work. The movie Joe Versus the Volcano begins with a funereal, zombie-like march to work of hundreds of pale, suited employees with utterly vacant expressions. I don't know why that particular image jumps out at me, because it's a fairly common depiction of commuting. But when I get on a packed subway, or walk down the street with hundreds of other people going to work, and I think about how many more packed subways, cars, trains, roads, planes, etc. will be taking people to work simultaneously (not to mention other time zones), I'm inspired. Hundreds of millions of people producing, adding value.

Don't get me wrong, of course it's not as idyllic as I'm making it out to be. Many people are lazy, hate their jobs, etc. But it's still the best way to put in perspective how much gets done in the course of a single day (or at least, how much could potentially get done).

Today's Dowd

2004-05-16T20:54:00.000-04:00

I'm not a fan of Maureen Dowd. I normally find her to be too partisan. However, her column today is well worth a read. It's titled The Springs of Fate and here's how it begins:

"Oblivious of the consequences, the impetuous black sheep of a ruling family starts a war triggered by a personal grudge.

"The father, a respected veteran of his own wars, suppresses his unease and graciously supports his son, even though it will end up destroying his legacy and the world order he envisioned.

"The ferocious battle in the far-off sands spirals out of control, with many brave soldiers killed, with symbols of divinity damaged, with graphic scenes showing physical abuse of the conquered, and with devastatingly surreptitious guerrilla tactics.

"Aside from dishing up a gilded Brad Pitt with a leather miniskirt and a Heathrow duty-free accent as he tosses about ancient insults, such as calling someone a "sack of wine," "Troy" also dishes up some gilded lessons on the Aeschylating cost of imperial ambitions and personal vendettas."

So you see where she's going with this. It's one of her classic parallelisms. Check it out.

Tonight's Simpsons

2004-05-16T20:49:00.000-04:00

Very funny and political Simpsons tonight. One really biting and hysterical exchange was the following between Principal Skinner (a Vietnam veteran) and Homer, after Bart (inadvertently) moons the American flag:

Skinner: I'm offended not just as a principal, but as a veteran in the only war America lost.
Homer: To date.

The whole episode was politically charged, and one of the funniest I've seen recently.

admit it melendres, this is exactly what you think . . .

2004-05-14T21:42:00.000-04:00

I agree that we have been blessed and were born into a relatively Peaceful world. while potentially cataclysmically dangerous (Cuban missile crisis),the bipolar structure of the cold war world was relatively stable. When the soviet union tanked in the late 80's/early 90's there was a unipolar moment during which the world (or at least our world) continued to be fairly peaceful and American dominance was unchallenged. then two things happened. first, geopolitics started to be defined by a balance of power paradigm. that is, states began to balance against the us, which is a partial reason for the strain in the trans-Atlantic/NATO relationship. second, long simmering problems held in check by bipolarity boiled over - kosovo is a prime example. now, terrorism has compounded and added to these problems. international relations theory predicts that a bipolar system is more stable than a unipolar or multipolar one and events of the past 3 years are conforming to that prediction. I feel like the world is fundamentally different and more dangerous than it was five or ten or twenty years ago and it's hard to know where its going. for example, i think the prospect of nuclear devastation is much more likely now than it was ever was during the cold war. during that phase in world history the doctrine of mutual assured destruction helped hold things in check in that both the us and USSR were deterred from launching a nuclear attack because each country had enough nuclear weapons to survive an initial attack and launch a counterattack. that logic doesn't hold up when non-state actors are involved. i'm not suggesting the end of the world is imminent, but i think to not acknowledge this threat is to ignore reality.

non-posters fucking suck . . .

2004-05-14T21:06:00.000-04:00

some time a while ago some guy somewhere somehow related to the law once said said something like "everyone is entitled to my opinion." well, i flip this principle on its head - i'm entitled to your opinion. if you don't like it, you can (to put this as diplomatically as possible) FUCK OFF. first, i like to stay in touch with people i care about, which (unfortunately) includes even you ferrara. second, the world's waters are choppier than ever. this isn't rainy weather; it's every ecological disaster possible - hurricanes, tornadoes, droughts, wild forest fires, etc. - bundled into one big ol' hulking metaphor. we no longer have the luxury of opinions. in this world, we have convictions or we're not eligible for the debate. second, i'd like to clarify that i reserve the right to post whatever i want on this bulletin. in other words, if i want to write something about the deep resentment i felt toward the lead character in the porn i saw last week, you're going to know where you can read about it. if i want to enumerate the top-ten reasons (among countless others) women have killed to sleep avec moi, you'll have the opportunity to study up on your technique. finally, i don't intend to apply cosmetics to my language for your benefit. if you're sheepish about curse words and jokes that would likely offend run of the mill mechanics, you should get some balls or a strap-on as the case may be. this is a bona fide open forum and i intend to fill it up . . . motherfucka'.

my morning hole in the wall . . .

2004-05-14T19:06:00.000-04:00

i don't know if other people have had this problem lately, but i have major anger management issues in the morning. i read the paper on the way to work. usually, by the time the bus has made its third or fourth stop, i'm red-hot and boiling over, ready to punch a hole in the nearest wall. politics have gotten way too visceral lately. the kind and gentle folk of san francisco seem scared of me, which isn't entirely unjustified. DO NOT FUCK WITH A MAN WHO HAS JUST FINISHED THE NYTIMES? rummy, bush, and especially cheney make me so mad on a daily basis, i feel like the apocalypse is sure to set in by noon. what i wonder is do my fellow blognoscenti feel constantly on the brink these days even though they work desk jobs?

thomas friedman does it again . . .

2004-05-13T11:31:00.000-04:00

this guy is uncanny. he has consistently expressed my views on iraq (with a minor tweak or two). he continued to do so in today's column -- verbatim.

honestly . . .

2004-05-12T23:26:00.000-04:00

someone just asked me if he should go to law school. i told him to get the hell away from me. first, how does one answer this question? second, is this an opportunity for a guy to flex credentials when a girl asks? hmmmmmmmmm . . .

Silenced

2004-05-11T22:44:00.000-04:00

A number of us here are law clerks, and the Code of Conduct for Judicial Employees lays out a Dantesque heirarchy of dos and don'ts relating to speech and speech-like activity on various matters, mostly political ones. This, of course, has a less than salutary effect on this blogger's willingness to speak out on certain topics, even though he has some strong beliefs about the state of the Republic.

Anyway, I'm clerking for the next couple of years, so I started to think "gee, when will I be able to be publically politically active and outspoken?" The answer, sadly, is perhaps "never," since lawyers have many constraints too -- generally it's an ethical problem (and certainly a business problem) for a lawyer to go around trumpeting a position that's adverse to his clients' interest. Maybe this concern is more theoretical than actual...I guess I'll find out...I guess many of us newly minted lawyers will.

But isn't it sad? I feel silenced.

One comfort is that I think the Code of Conduct doesn't say that it's forbidden to discuss the wisdom (or Constitutionality) of the Code itself. So maybe we can all talk about that. Unless someone's working for a judge on the drafting committee.

Brown v. Bd. of Educ.

2004-05-11T20:20:00.000-04:00

Last night I attended an excellent program on Brown v. Board of Education. The panelists were five lawyers who worked on the cases at the NAACP Legal Defense and Educational Fund with Thurgood Marshall. They were (seated at the table from the audience's left to right) Jack B. Weinstein, Senior District Judge for the Eastern District of New York; Jack Greenberg, professor at Columbia Law School; Constance Baker Motley, Senior Judge for the Southern District of New York; Robert L. Carter, Senior District Judge for the Southern District of New York; and William T. Coleman, Jr., senior partner at O'Melveny & Myers. Theodore M. Shaw, Associate Director of the NAACP Legal Defense and Educational Fund, moderated.

I set forth my summary of the most interesting dialogue below. (It's short because the program was only an hour long.) Nothing is word for word, and therefore any errors are mine.

TMS: What was the strategy of Brown? How was the decision made to challenge segregation head on?

CBM: In 1948, President Truman spoke to a convention of the NAACP in Washington D.C. He issued an executive order desegregating the armed forces. Also, we were hearing claims from overseas that white servicemen were receiving less prison time for rapes than were their black counterparts. Much of what drove the NAACP was the energy of returning black servicemen. They came back and saw German POWs sitting in the front of the bus, while they had to sit in the back.

RLC: I disagree (and I'm senior to CBM). There was a view that segregation was the thing keeping blacks from equality. But Brown removed segregation and not very much has changed. Segregation hasn't been remedied because the United States is wedded to white supremacy and black subordination. Education in schools for black youths is probably worse than it was before Brown. Black youths are not getting a decent education and, after Brown, we can't say that the government is responsible.

TMS: Knocking down segregation has not actually brought about the end of segregation?

RLC: Sometimes you have to knock down barriers to see what the real barriers are.

JBW: Their was a divergence between law and real life. The government argued "separate but equal," which was a poweful argument as it had been the rule of SCOTUS for sixty years. But RLC saw that we needed congruence between law and life. And when that gap between law and life gets too big, the law has to change. The country had just come through WWII and we were seeing similar tactics from the South that we'd seen from the Nazis. Charles Black (of Yale and Columbia) said that in reality, segregation was the basis for denigration, and RLC focused on that, that the law had to mesh with that reality. And that was the underlying aspect of SCOTUS's decision, that equality and segregation are not possible together. The sociological incongruity that keeps people segregated is the next big problem, one which SCOTUS has completely ignored.

TMS: Were you aware of the historical significance of your efforts, that these cases were about fundamentally changing the country?

CBM: We underestimated the resistance to the decision from the South. Alabama shut down the Ala. NAACP chapter and demanded the membership lists. (That case went to SCOTUS.) The decision was first enforced in Little Rock, Ark. by the use of federal troops. Federal troops were also necessary in Miss. in 1961. Federal agents had to sleep in the room with James Meredith (the first black student at the Univ. of Miss.). South Carolina didn't resist because they had watched federal agents go into Ala. and Miss.

TMS: What have we learned? How viable is the law as a tool for social change?

JG: It depends on the law and what you want to change. Brown did a lot, but there was a lot it couldn't do. Many states had only one black lawyer at the time Brown was decided. Now there are tens of thousands of black law students. CBM calls UMiss the most well-integrated school she's ever seen. At the same time, black unemployment is twice that of white's, half of the prison population is black, and black salaries are 60% of white's. The glass is just more than half full now, and it was empty at the time Brown was decided.

WTC: After such a great victory in Brown, we thought that by now NY and Phila. schools would be integrated. It didn't work out the way we thought it would, though we'd be worse off if Brown had come out the other way. It's a challenge for this country.

CBM: One result of Brown is the rise of the black middle class. I recently went to Martha's Vineyard and I didn't meet a black person who didn't live in a $1 million home. Many black people benefited in a significant economic way from Brown.

RLC: The decision in Brown on the merits, outlawing segregation, was great. But the decision on relief, i.e., relief over time, was racist and in keeping with the white supremacy of this country. I know of no other SCOTUS case where a right identified by SCOTUS was not conferred immediately. In Brown alone was the relief conferred over time. Indeed, the merits decision of Brown has yet to be put into full effect.

If I had it to do over again, I would enlist the help of educators to define "equal education opportunity." I was trying to define it as a lawyer, but could it have been defined by an educator? We have to find a way for black children to get an equal education so they can involve themselves in jobs in the mainstream U.S. That's the challenge.

JGW: Brown and the issues raised by it have fractured into manifold issues that we face every day. We have to be dedicated to solving the smaller issues that lead to vindicating Brown. These include the harsh sentences dealt out to black youths, segregated housing, welfare, medicare, and medicine; all the things that make the U.S. elitist. These "retail" issues will challenge us for the next fifty years.

Kerry’s anti-message

2004-05-05T11:37:00.000-04:00

As I wondered aloud in a prior post, “How in the hell can Bush’s popularity not be suffering amidst the hellish violence in Iraq, the repeated criticism of his administration’s secrecy, and the numerous reports that he and/or members of his administration have failed to adequately protect the American people?” Here’s a theory:

For the past month and a half, Kerry has been relatively silent. He and his campaign staff have allowed the Bush Administration to impugn Kerry’s military record without any firm rebuttal. He hasn’t answered the Administration’s charges of being a spineless equivocator. Nor has he come forward with a clear message to define his candidacy. That’s a problem.

The evidence of that problem is overwhelming. A recent CBS/NY Times poll demonstrates it all too well. Pollsters asked 856 registered voters nationwide a series of questions about both of the candidates. Each question featured three potential responses; “I don’t know” was always one. In the “I don’t know” category, Kerry beat the hell out of Bush. For instance, when asked “Do you think that [insert candidate] says what he really believes or what he thinks people want to hear?” Four percent answered “I don’t know” with regard to Bush; the figure for Kerry was ten percent. “Do you think [insert candidate] is someone you’d like personally?” Six percent didn’t know about Bush; nineteen percent didn’t know about Kerry. The same result manifested when asked whether the candidates shared the moral values that most Americans live by. The results were even worse when it came to whether the candidates share your priorities for the country. Three percent didn’t know re: Bush; a full eighteen percent didn’t know re: Kerry.

Perhaps the most shocking is the disparity in faith in the ability to wisely handle an international crisis—an issue that ought to be a cornerstone of Kerry’s campaign, given the Bush Administration’s repeated botching of all things international. Yet three percent aren’t sure of Bush’s ability, while fourteen percent aren’t sure about Kerry.

What’s the point? The point is that Kerry is doing exactly what the Democrats seemed to want a candidate to do—pussyfoot around and avoid taking any controversial stands that may alienate some voters. After all, we couldn’t have a guy like Dean who’d let you know where he stands. That’s just not “Presidential” enough for the Democratic base. Yet by failing to stand up and deliver a coherent message to define his candidacy, Kerry may end up sacrificing his chances at winning in a Gore 2000-esque example of playing not to lose rather than playing to win. As much as a fifth of the electorate is undecided in this election, and all of those votes are up for grabs. Kerry should go after those votes aggressively, rather than attempt to “play it safe” and scavenge those he’ll win by default if and when Bush pisses them off.

Bush

2004-05-03T13:20:00.000-04:00

After reading stuff like this, I'm utterly baffled by how he can still be leading in most polls (I recognize that the first one listed disproves my point, but look at the others).

Hats off to John Miller

2004-04-30T14:29:00.000-04:00

Remember this guy?

Julia

2004-04-30T14:09:00.000-04:00

So everyone in my office feels the need to ask me if I knew the NYU "Pot Smoking Princess." I find my desk littered with pages torn out from the Daily News and the New York Post. The media is obsessed with the 18 year-old beauty from Rumson, NJ. Every person who graduated from my high school has read the "Druggie With a Heart" article in yesterday's New York Post. How can we resist reading about how the homeless drug addict from Washington Square Park urged young Julia to get back to her books and give up her gig as a dealer on the streets. It's all filth (ok I bought it -- but it was only 50 cents...)
The story here is simple and sad. The girl was nearly burned alive at the age of 3 during a house fire. She still bears terrible scars on her arms and legs. She was a sweet and popular girl in high school living in her successful older brothers' shadows and trying to make a name for herself. She enters NYU and is desperate to fit in. Gets wrapped up in the drug culture and starts dealing, not to make money but to buy friends. She stuck out like a sore thumb in Washington Square Park -- trolling around in her Juicy Couture sweat suits dealing the coke, pot and shrooms. So of course she gets caught. It seems to me that she either didn't care or knew and wanted the attention. How could someone be so stupid? Because she probably developed an addiction. Add depression and the stress of freshman year in college on top of the drug problem. What do you get? Potentially 25 years in the slammer.
I have no problem sending the rapists and murderers to jail. But sending a teenage who is a first time offender to prison doesn't sit right with me. New York's Rockefeller Drug laws are among the harshest mandatory minimums in the nation. From what I gather she faces a mandatory minimum of one year and up to 25 years because she was dealing in a school zone. The media is drooling for more more more. At NYU we've got a Pot Smoking Princess and The Library Sleeper (a whole other disturbing story). Just last week the body of a Wellesley College first-year (KatieLynn Palmer) was found in the shrubs by her dorm. She disappeared on a Monday but her roomies didn't report her missing until Wednesday. It's been rumored that she killed herself because she was disappointed in her grades for the semester. Although their issues are totally unique each of these college students have one thing in common: Something was wrong and either nobody cared or nobody noticed.

Press Release from April 27, 2004:
Manhattan District Attorney Robert M. Morgenthau today announced the indictment of an 18-year-old freshman at New York University on charges of dealing drugs out of her dormitory room.

The defendant is JULIA DIACO. Using her dormitory room as a base of operations and communicating via cellular telephone, DIACO sold illegal drugs, including marijuana, concentrated marijuana, cocaine, hallucinogenic mushrooms, and LSD, to an undercover officer on eight occasions. The sales occurred inside Washington Square Park, on West 4th Street and Sixth Avenue, and inside the Hayden Hall dormitory at New York University.

The indictment stems from an investigation, conducted jointly by the New York City Police Department's Manhattan South Narcotics District and the Firearms Trafficking Unit of the New York County District Attorney's Office, into street-level drug dealing and other crimes in the area of NYU and Washington Square Park. Utilizing undercover detectives and surveillance techniques, the investigation revealed the ongoing sale of drugs from NYU's Hayden Hall dormitory, located at 33 Washington Square West, by DIACO, a dormitory resident.

DIACO is charged with Criminal Sale and Possession of a Controlled Substance in the Third Degree, and Criminal Sale of a Controlled Substance In or Near School Grounds, each a class B felony upon which she faces up to 8-1/3 to 25 years in prison on each count, Criminal Sale of a Controlled Substance in the Fifth Degree, a class D felony which carries up to 2-1/3 to 7 years in prison, and Criminal Sale of Marijuana in the Fourth Degree, a class A misdemeanor, which carries a maximum penalty of one year in jail.

The defendant was arrested this afternoon while walking near St. Mark's Place, en route to a pre-arranged transaction with an undercover officer. The defendant was in possession of several ounces of high-grade marijuana and a scale at the time of her arrest. The investigation is continuing.

2004-04-27T23:20:00.000-04:00

"Law clerks are the lowest form of human life."

-- Justice William O. Douglas

2004-04-27T23:19:00.000-04:00

Judge Michael Chertoff (former chief of the criminal division at DOJ), recently gave a lecture as part of C-SPAN's America and the Courts series. He discussed the disconnect between intelligence and law enforcement. Here's the hypo he posed:

The United States has obtained information on U.S. citizens (not aliens, which would allow use of immigration laws), in the form of highly classified intercepts. The information is crystal clear but if it's disclosure would compromise a very sensitive method of interception. If the information were revealed, the interception method would also necessarily be revealed, effectively shutting it down. Corroboration of this information is provided by a foreign government based on information it obtained from interrogations of people held by that government. However, that government would never admit it had these people in custody, and would not deal with us again if we disclosed the information. Finally, we have information from an informant that the CIA has been paying for years. This informant's credibility is questionable and he has lots of baggage, but in this instance his information dovetails nicely with the other information we've obtained. Finally, the information calls for imminent action, but because of the general nature of the information, we can't simply post guards or warn the public (all we could tell the public to do is not to the leave the house).

So what do we do? Well we have to apprehend or incapacitate the people we know are planning to carry out the plot. (Judge Chertoff asks us to take it on faith that simply following the conspirators around for long periods of time is too imperfect a solution.)

In the hypo, the paradigm of intelligence clashes with the paradigm of law enforcement: None of the evidence described in the hypo is admissible in court. The intercepts would require review by the court and the defense attorney, at the very least. The foreign government's information is hearsay. The informant almost certainly wouldn't show up for trial, but even if he did, he is easily impeached.

Therefore, Judge Chertoff proposes three solutions (though he makes clear that he is not advocating any of them, but rather trying to start a discussion):

1. Should the U.S. system allow detention of its citizens outside of the judicial system in order to prevent acts of terror. This is the enemy combatant rule that the administration is arguing for in Padilla and Hamdi this week. This solution parallels with the logic of incapacitating enemy soldiers overseas in order to prevent them from taking up arms.

Here, we are not interested in punishing, just in incapacitating. The evidentiary problems are eliminated by this solution. Further, as Padilla and Hamdi have made clearer (though not crystal clear by any respect), enemy-combatant designation does have some procedures, i.e., it's not some willy-nilly process--though you have to take the Executive's word for it. The biggest problem with this solution is continued detention. We would need a control or check within the executive branch (DOJ or DOD?) to justify holding a person for weeks or months on end.

2. A more judicial-type of resolution of this type of terrorist threat is the use of military commissions--a sort of compromise position. Currently, however, by the President's order, citizens are outside the ambit of these commissions. Should the President's order be amended?

Going this route would add another element of due process. But the need for proof is just as compelling here as in an Article III court, thus many of the evidentiary problems remain.

3. Finally, we could use the ordinary criminal justice process but modify it to allow conviction of terrorists through the use of types of evidence and procedures not normally accepted.

Can Article III courts be adapted to try terrorism cases? Of course, constitutional limitations operate most significantly here. One legitimate concern is that if courts are used differently for terrorism cases, there will be a spillover into drug cases, organized-crime cases, etc. This solution would require a good definition as to what a terrorism case is, to act as a sort of gate, because we want to use the different procedures only when necessary.

Judge Chertoff identified some hints in the Supreme Court's caselaw that it might view terrorism cases differently, i.e., tweak the rules in those cases. See Richmond Newspapers v. Virginia, 448 U.S. 555, 598 n.24 () (Brennan, J., concurring in the judgment) ("For example, national security concerns about confidentiality may sometimes warrant closures during sensitive portions of trial proceedings, such as testimony about state secrets." (citing United States v. Nixon, 418 U.S. 683, 714-16 (1974)); see also United States v. Salerno, 481 U.S. 739 (1987) (upholding against constitutional challenge a provision of Bail Reform Act requiring pretrial detention of arrestees charged with certain crimes if government can demonstrate by clear and convincing evidence that arrestee would be a danger to the community).

My immediate question is how to define terrorism. That's the key to any of these proposals. Anyway, wanted to open this up for comment.

A True Patriot

2004-04-23T12:49:00.000-04:00

I just heard that Pat Tillman died in Afghanistan today. Here's the news story. And, here's another.

As Bill Maher points out in his book, Tillman is a true hero. Rather than remain stateside and earn a boatload of money playing football (he was an Arizona Cardinal), Tillman decided to work for a cause he believed in, and wound up giving his life to the cause. I can't say how impressed I am by his courage to step up and do what he felt his country needed, rather than wait for someone else to do it. What a loss.

Slight Supermajority Voting Rules

2004-04-23T01:10:00.000-04:00

I was thinking a bit about the United States Senate's filibuster, which is really the product of needing a supermajority (60 votes out of 100) to invoke cloture—end debate and bring a proposal to a vote.

Most voting systems require simple majorities (i.e., 50% plus 1 vote of those participating). But is this automatically the "best" thing? After all, some situations are thought to operate better by requiring supermajorities. For example, the U.S. Constitution requires supermajorities of each house and of the states to amend the Constitution, and a supermajority of senators to vote to convict in cases of impeachment. These supermajoriteis are fairly substantial—2/3ds in most cases, 3/4ths in some.

The obvious virtue (or vice) of supermajorities is that they tends to be hard to attain, and therefore require some work. This is a good thing in, say, cases of impeachment, since that should not be undertaken lightly. But can becomes a vice in that it produces the potential for deadlock—as in a case where some action needs to be taken, but no single proposal can command the requisite supermajority to put it into effect.

A less obvious virtue (or, again, vice) of a supermajority rule is its conservativism, by which I mean its tendency to insulate proposals adopted in the past by a thin margin from suddenly getting switched back the other way when there's a thin margin the other way. For example, if a body is split 5-4 on an issue, and one vote changes, it will go 5-4 the other way. Now, institutions like courts (think the Supreme Court on this one; the 5-4 thing wasn't an accident) have values like stare decisis to protect against this instability. But legislatures don't.

Which brings me to the question of whether slighter supermajorities—say, 5/9ths or 11/20ths—wouldn't be superior to simple majorities. A legislature with a supermajority rule could be protected from shifts that turn on a single vote: Suppose a 100-member body (like the Senate) must pass a proposal 55-45 for it to take effect. In that case, the vote cannot be reversed unless fully 10 senators change their votes. Under the current system, a 51-49 vote can be reversed by just 2 votes shifts.

Now I don't know that the Senate, or any other legislature, has this sort of flip-flop problem. There may well be informal institutional constrains on this sort of flip-flopping. But you could at least imagine it. And you could imagine that different subjects might benefit from different rules—the Framers certainly thought so, since they provided that treaties had to be approved by a supermajority (2/3ds) of the Senate. Might there be other functions that could benefit from slight supermajorities? Tax policy is one area that comes to mind as benefitting from some consistency (although revenue raising can make for nasty deadlock problems). Criminal laws, maybe, since they would be clearer if they didn't shift.

I realize that this is sort of half a thought—or more accurately, a solution in search of a problem. But maybe others have further thoughts?

Annoying Packaging

2004-04-23T01:06:00.000-04:00

I don't want to sound too much like Andy Rooney, but why is it that retail packaging is so frickin' un-user-friendly? I'm thinking in particular about that really molded hard clear plastic that entombs razors, small consumer electronics devices, memory cards for digital cameras, etc. You can't open it with your hands. Can't open it with your teeth. You can sometimes cut it with really sturdy scissors (although I've broken more than a pair hacking away at the stuff), but then you're left with knife-sharp edges. What circle of hell did they find this stuff in?

Why Hadn't I Heard of Operation Bojinka?

2004-04-23T00:58:00.000-04:00

Maybe I've been hiding under a rock since 9/11, but how did I not know about Operation Bojinka? Basically, it's associates of the folks who brought us 9/11 trying a similar plot in the mid-90s. For what it's worth, logistically speaking, 9/11 was the little brother of Operation Bojinka, which was to involve (a) killing the Pope, and (b) simultaneously blowing up about a dozen airplanes over the Pacific. Anyway, the media was on to it shortly after 9/11, but why haven't we heard anything of this in front of the 9/11 commission?

Or have we and I'm the last to know?

Counter

2004-04-21T08:27:00.000-04:00

As you'll see on the left, the administrators of this blog (of which I am one) have chosen to add a counter. Though I support this addition, I'm wary of it, and encourage you to be as well. Counters, as far as I can see, threaten the integrity of the blog in two ways.

First, depending on how quickly the counter increases, the participants of the blog either get bored because no one else is reading our thoughts and give up, or are excited by all the hits and start writing for an "audience." Either outcome is bad. When we conceived of this site, it was as a way for us all to dialogue and exchange ides and keep in touch. It wasn't to create the next How Appealing or Volohk Conspiracy.

Second, those visiting the site judge it based not on the content, but on the number of hits. A site with a lot of hits must be "good" and "interesting," while a site with few hits is "boring" or "dumb." The counter becomes a proxy. (Note: I'm not sying that if people did read the content that they'd necessarily have a positive view of the blog.)

So anyway, the counter is here, take it for what it's worth. I suppose this post sounds very nervous and defensive, and I guess it is. I just don't want potential participants (of which there are currently many; compare the list on the left to those who have actually posted) to be put off by a low number of hits. At the same time, I don't want anyone joining just becaue they think they've got an audience (though I admit that's far, far less likely).

Is the Interest Rate Party Over?

2004-04-20T21:27:00.000-04:00

In keeping with my finance-themed musings today, I'll direct your attention to today's op-ed by Paul Krugman, who has (see Mike's earlier post) thankfully returned to writing about something he's qualified to opine on. He wrote about how the anticipated rise in interest rates is going to bitch-slap all of us who have gotten used to low interest rates. He's talking about a 3% rise.

It's going to hurt in a lot of places. Obviously, there won't be any more 3.99% credit card rate offers, which have made it practical for some to (over)extend themselves. If you're carrying a $10,000 balance, a jump up from 3.99% to, say, 9.99% is going to move you from paying $35 a month in finance charges to paying $85 a month. Whether this will have any effect on minimum payments is doubtful, though, I guess. (And before somebody claims I can't do math, I think my guess about the rate bump is right because (a) I don't know that anybody can get 3.99% right now anyway, and (b) credit card rates seem to be leveraged, compared to prime rates, so a disproportionate jump is to be expected.)

And think about student loans. The law students among us are looking at about $100,000 of variable-rate loans being repaid over about 20 years, presently at about 5%. Jack that up to 8% and the monthly payment goes from about $660 a month to about $840 a month (yes, that's almost a 30% jump).

Rough, when you consider that there's not much you can do.

Credit Card Expiration

2004-04-20T14:41:00.000-04:00

As we all know, credit card have expiration dates--usually dated a few years after you receive the new card. My primary credit card was set to expire this month, and like clockwork, without me even having to ask, they sent me a new card, with a later expiration date. No real surprise, right?

Anyway, thanks to some reminders from various merchants (like my cell phone and PayPal), I realized before I activated the new card that I'd need to update my expiration date to avoid mass chaos. All told, there were about a dozen places that had my credit card info for regular or semi-regular automatic billing. This took about two hours last night, and a phone call or two this morning. I experienced everything from smooth, quick web sites, to god-awful confusion and phone calls to customer service, to asbolutely clueless customer service reps.

Anyway, all this got me thinking: Why do credit cards have expiration dates? It's not like they're actually used as expiration dates, since the credit card company invariably sends you a new one right before the old one is set to expire. And it's not like credit card issuers wait around for the expiration date to take action on a delinquent account, or deal with a stolen card by "just waiting for it to expire." And they'll send you a new card if the old one physically wears out. So what purpose do expiration dates serve, beyond effectively adding another four digits to your credit card number? In fact, I treat my expiration date just like that--I follow the 16 digits of the card with the four digit expiration. (And that three-digit "security code" on the back is swiftly becoming de rigueur as well.)

The only explanation I can think of is that it's a crude (very, very crude) antifraud measure to protect all eleven of the merchants out there who still don't have dial-in verification that your card is valid--you know, the kind that uses the hand-slid carbon-paper physical impression device. But all the expiration date accomplishes in this case is preventing a would-be fraudulent user from using the card after its expired; of course, there's nothing to stop our hypothetical miscreant from using the card this way in the three years before it expires (by getting the card, cancelling the account, and using the card at merchants that don't dial-in).

So for this astonishing lack of benefits (am I missing something?) from the use of expiration dates, we get in exchange enormous hassles when the date changes. This is only going to get worse as more and more accounts bill auomatically to credit cards, since the internet makes that so easy to set up.

What gives? Why can't I have an expiration-less credit card?

Security Lapse

2004-04-20T08:18:00.000-04:00

Some of you may have seen in recent days that Condi Rice has been warning of terrorist "chatter" regarding the upcoming presidential election. In light of this, the Secret Service has provided John Kerry with a full detail of agents.

However, John Kerry is only the presumptive democratic candidate. Has everyone forgotten about Dennis Kucinich?? Folks, as you'll see on his official campaign website, he recently won (not second, not third, not sixth) Saturday's caucuses in Orange, Buncombe, and Watauga counties, North Carolina.

Because of his national prominence, Kucinich is a prime target for Al Queda. He needs more security. . . now. (The Secret Service could not be reached for comment.)

For-Profit Soldiers

2004-04-19T11:26:00.000-04:00

Is anybody else alarmed by the number of "for hire" security forces operating in Iraq? Estimates put the number of private security forces at about 20,000, in addition to the 130,000 American troops already there. Today's NY Times devotes a lengthy article to the growing number of non-military security personnel (such as the four men employed by Blackwater, U.S.A. who were killed and mutilated a few weeks ago).

The dependence by the U.S. on this new brand of mercenary naturally raises a number of issues. Here are a few alarming quotes from the article, and some comments:

-- "Far more than in any other conflict in United States history, the Pentagon is relying on private security companies to perform crucial jobs once entrusted to the military." The private security guards even provide security for Paul Bremer! If that's not a P.R. mistake, I don't know what is. Are our troops so overstretched, so overwhelmed, they can't provide a security detail for the U.S.'s top official in Iraq? And if they are, then that's a conversation that Bush needs to have with the American people.

--"By some recent government estimates, security costs could claim up to 25 percent of the $18 billion budgeted for reconstruction, a huge and mostly unanticipated expense that could delay or force the cancellation of billions of dollars worth of projects to rebuild schools, water treatment plants, electric lines and oil refineries." The security companies charge the U.S. military about $500- $1,500 per day for each "skilled operator." One of the big mistakes being made by the Administration in Iraq (and in Afghanistan, for that matter) is the lack of investment in infrastructure and institutions necessary for Iraq to be self-sustaining once American troops leave (a date that is omninously close). That security forces are compensated from the same finite pot of money as is budgeted for public works projects shows the importance of holding the Administration accountable for its unprecedented use of non-military personnel.

--"There is no central oversight of the companies, no uniform rules of engagement, no consistent standards for vetting or training new hires. Some security guards complain bitterly of being thrust into combat without adequate firepower, training or equipment." Wow, talk about sending people out to slaughter. No rules of engagement, no standards for training new hires?! These are people armed with heavy artillery, for Pete's sake.

--"[S]ome military leaders are openly grumbling that the lure of $500 to $1,500 a day is siphoning away some of their most experienced Special Operations people at the very time their services are most in demand." This is very troubling. Does this mean that people on whom the U.S. military has spent untold amounts of money and resources training to become highly specialized soldiers are opting not to fight under the banner of the U.S. military, but are instead opting for the sweeter rewards of more money and fewer rules? The incentives are perverse.

-- "Government contracting officials and company executives concede that private guards have every right to abandon their posts if they deem the situation too unsafe. They are not subject to the Uniform Code of Military Justice, nor can they be prosecuted under civil laws or declared AWOL." Well, I hope Bremer feels safe with his private guards...considering they can run away as soon as the situation becomes ugly.

There are so many more passages in the article that are worth quoting, but I am trying to keep this short. The point is not to doubt the courage of all the men and women who are over there right now, but it is to call into question a policy that allows the Bush Administration to downplay how overwhelmed our troops are in Iraq, to outsource some of the "crucial" functions that our country spends an exorbitant amount of tax dollars training personnel to do, and to hide the true costs of the war by siphoning money from public works projects into the kind of expenditure that should be disclosed in military budgets. Not to mention the lack of oversight in a situation that is fraught with potential for abuse, including human rights abuse.

Anyway, that's my two cents.

Surprising Field Trip

2004-04-18T21:24:00.000-04:00

I recently visited a federal prison for women in Danbury, Conn. It was eye-opening, and I wanted to get a few observations down.

The warden (also a woman) told us that she would much rather run a men's maximum security prison than a women's prison (which is basically minimum security). Though there's more violence involved, she said that the men are more compliant than the women. That is, they're more likely to follow the rules without "backtalk" (my word). The warden speculated that this was because men are raised playing team sports and often serve in the military, and so are less likely to question rules or bristle at being treated the same as everyone else. A female inmate is more likely to ask why such-and-such rule has to apply to her, i.e., why an exception can't be made.

The warden also said that there's very little violence in the women's prison. She says that once the women are taken away from the negative influences in the outside world, they cause few problems (or at least violent problems). Unsurprisingly, these influences are often men, such as husbands, boyfriends, fathers, etc. There are no gangs in the prison, though the women did create "families."

We also had the opportunity to meet three inmates. All three were in for drug offenses, which was unremarkable. What was remarkable was their sentences. The three were all serving over twenty years. One had pleaded guilty to thirty years. I don't think I need to say that that's a LOT of time to plead guilty to. They described their lawyers, state practitioners trying some federal work, as largely incompetent. One woman described her attorney handing her her presentence report and asking her if it looked right because he didn't know what to make of it. They were not explained the rights they were waiving by pleading guilty. At their Rule 11 allocution (where, before pleading guilty, the judge asks the defendant a series of questions to ensure that s/he understands the rights s/he is waiving), the women simply kept saying "yes," regardless of whether they understood or not. One of the questions at the allocution is whether the defendant has been promised a sentence (because no one is supposed to promise the defendant a sentence because no one but the judge has the power to sentence). One woman's lawyer told her that she wouldn't get more than ten years, but she still told the judge that she had not been promised a sentence. She got over twenty years.

Another's lawyer told her not to plead guilty because he loved trying cases. For those of you reading that aren't lawyers, that's an ethical breach worthy of disbarment, and it's a travesty. I don't have words strong enough to condemn these attorneys. I asked the women for the reputation of the federal defenders. One said that an attorney seeking to be retained (i.e., get paid) told her, as she chose whether to receive appointed counsel or collect the money to pay him, that "you get what you pay for," which is comlete nonsense because the federal defenders are, on average, the best attorneys I have seen--including the prosecutors and attorneys from "big firms." More on this in a later post.

To end on a happy note, we were all truly struck by how caring the prison staff was. One especially poignant moment came in a section of the prison where inmates with mental problems (be it depression, suicidal tendencies, etc.) were housed as a stepping stone before being reintegrated with the general prison population. The prison had various programs and support groups for these inmates which the inmates could eventually "graduate" from and rejoin the population at large. So we're standing in that area on the tour, and an inmate comes up to one of the staff leading the tour, and tells him that she graduated last week. He responds that he knows, he saw her at the ceremony. She asks if he'll come see her diploma and he promises he will after the guests (us) leave. It was a touching moment, because she was so happy and proud of what she'd accomplished, and that she had such a relationship with the staff that she wanted to share it with them.

Finally, we saw the law library. They had a pretty full collection of F.2d and F.3d, but I found that to be pretty meaningless. How is a full set of F.3ds going to help anyone? They had no online capability (at least not in the law library), and they also had very few treatises. I figure that's what they need. A bunch of habeas manuals, some guides on drafting pleadings, and maybe some books on § 1983. So maybe if any chambers out there have any old habeas or 1983 treatises, donate them to your local prison.

Eulogy

2004-04-18T20:42:00.000-04:00

A friend of mine (named "Katja," americanized to "Kathy"), sent the following article from the NY Post around, prefacing it by writing, "You know, if the Post were to write this about me in 60 years, I would have had a happy life." The text of the article reads:

April 10, 2004 -- Kathy, a beloved 34-year-old beluga whale at the New York Aquarium in Coney Island, was euthanized yesterday because of complications from old age and a bacterial disease. The adorable mammal survived years beyond her cousins in the wild, who rarely make it to 30.

Kathy had been under special care by veterinarians and trainers after being diagnosed with a severe bacterial infection.

"She was one of the most beloved animals here," said Martha Hiatt, senior trainer at the aquarium.

"She had such a great face. She looked like she was always smiling. She was so great with the public. The kids would just squeal when they saw her face because she was always so expressive."

Kathy, believed to have been the longest-living whale in captivity, arrived at the aquarium in 1975 after being captured in the Churchill River in Manitoba, Canada, just 600 miles from the North Pole.

With her fun-loving demeanor, Kathy immediately became one of the most popular attractions at the aquarium.

Aquarium director Dr. Paul Boyle said officials and visitors "are deeply saddened by the loss of our beloved beluga, Kathy . . . a truly amazing animal and an ambassador for her species."

Veterinary staff had worked tirelessly to save Kathy, who had two offspring.

But her advanced age and the severity of her disease proved too much for the mammal to bear.

Sheer Brilliance

2004-04-15T12:10:00.000-04:00

A few random observations on our commander-in-chief's performance Tuesday night:

1. He was much more impressive than I had expected. I suppose that has much more to do with how low my expectations are (down to the level of "parent at the Special Olympics"), than how great his performance was.

2. Did anyone else notice the eloquence gap between the reporters and Bush? Reporters would shoot out sharp, well-phrased questions quickly. In response, Bush offered short sentences filled uh . . .um . . . with monosyllabic words and riddled with er . . . I mean . . . stammering.

3. I'm beginning to see some strong parallels between Bush and The Dude from The Big Lebowski. Just as The Dude seized upon words and phrases he heard from other characters in the movie ("to use the parlance of our times," "you mean coitus?," "this aggression, uh, man, like, won't stand") and repeated them like a small child, Bush seemed intent on repeating whatever catch phrases his speech writers and advisers had cooked up for him ("changing the world," "I understand the consequences," "no inkling of the attacks", "oceans won't protect us"). Maybe Donald Rumsfeld will eventually turn into Lebowski's "Donny."

4. If "Freedom is the Almighty's gift to every man and woman in this world," as Bush stated, why did we shut down al-Sadr's newspaper? Taking away the Almighty's gift seems pretty antithetical to our purpose in Iraq, no?

5. It seemed that the vast majority of his comments fell into one of two categories. First were the comments that were so blatantly obvious that no one could disagree with them (e.g., "an important part of the 9/11 commission's job is to analyze what went on and what could have perhaps been done differently so that we can better secure America for the future", ). Then, there were the comments that required extensive justification to demonstrate their validity (e.g., "He [Hussein] was a danger"). Bush, however, offered both sorts of statements in the same cocky, matter of fact tone--a rhetorically brilliant move on his part, I think, because it makes it so easy for listeners to forget that the latter sorts of statements require any justification. Unreflective as he may be, he's got a Copperfield-esque ability to trick people.

Lyin' Sonsabitches

2004-04-14T11:52:00.000-04:00

I can't believe what an incredible disregard for the truth drug companies have. Abbott Laboratories is coming under fire for QUINTUPLING the cost of an AIDS drug. Of course, Abbott offers the standard pharmaceutical company explanation: "We need to increase our revenue because our R&D costs are so enormous."

I had long been sympathetic to that defense. After all, for each successful drug, the pharmaceutical companies finance scores of projects that flop and thereby generate zero revenue. Once I looked at some pharmaceutical companies' annual reports, however, that sympathy disappeared.

Abbott's R&D costs are big, no doubt about it. But their expenditures on advertising and other forms of "marketing" trumped the R&D costs by 266% in 2002 (see Abbott's 2002 Annual Report) and by 291% in 2003 (see Abbott's 2003 Annual Report).

Abbott's practices in this regard are far from an anomaly in that industry. In 2002, Merck spent $2.667 billion on R&D. The same year, it spent $6.187 billion on marketing and administrative expenses. Along similar lines, in 2002, Pfizer spent $5.176 billion (16% of revenues) on R&D. It also spent $10.846 billion (33.5% of revenues) on "sales incentives and advertising."

So rather than screw the patients (and, for that matter, insurance companies), why not cut down on the "wine & dine" dinners with doctors? Why not kill some of the TV advertising budget? Why has the media not begun asking these questions??

More on Law School Rankings

2004-04-08T21:28:00.000-04:00

In a previous post, I wrote a bit about why law school rankings are such nonsense. It was mostly some disconnected jabs at this site run by Prof. Brian Leiter. But my criticism really extends to all rankings that follow the syllogistic reasoning that schools with a better ranking (whether determined "objectively," by survey, whatever) in some category will provide a proportionately "better" law education. This, of course, includes the eagerly anticipated U.S. News & World Report rankings. (By the way, does anyone else think that these seem to appear more often than annually? Maybe it's just that colleges and graduate schools are published separately. Or maybe it's a sinister plot to milk the franchise.)

Anyway, I actually have a constructive view as well, and I want to write about that in this post. First off, let's set aside (for the time being at least) the problem of defining what a "good law school experience" means; diff'rent strokes for diff'rent folks. That's an irreducibly subjective debate, I think--maybe you want good constitutional law classes, maybe you want good clinics, maybe you want to be indoctrinated by the [liberal / conservative] elite, maybe you want to gawk at hottie undergrads. Suit yourself.

My view harks back to the original concept of the university, and I mean the way back version. I mean the version you learned about in your high school western civilization class. I mean the founding of the University of Paris (the Sorbonne) in the 13th century; I mean the founding of Oxford University in the 12th century; I mean the 11th-century founding of the University of Bologna. If you follow these links, you'll see that all these great universities grew up as intellectual centers. The point was vivere socialiter et collegialiter et moraliter et scholariter ("to live in good company, collegially, morally and studiously") (apparently Robert de Sorbon's motto for his college). The point of the university is the people there.

To use modern economic terminology, the original university existed to exploit the network effect of having scholars, teachers, students, resources all in the same physical location. Unless you're Immanuel Kant sitting on your own, cogitating away, things are going to go much, much better if you spend your time at a great center of learning. And, reciprocally, the university will be more attractive to the next scholar/teacher/student/thinker if you're there too.

What does this have to do with law schools? Like the original universities (and modern-day universities), law schools are where we congregate to learn. The rise of the modern American law school has, over a century or more, displaced the tradition of reading law, and the benefits of learning in a network-effect environment probably oughtweigh those of learning in an apprenticeship environment, as reading law essentially was. What does this have to do with rankings? Well, many of the categories in which law schools are ranked are categories that measure how successful a law school is at delivering network-effect benefits. Think about it:

Scholarly reputation (ranked by other scholars) tells you how attractive a school is to other scholars, which is a measure of the strength of the school's network effect

Selectivity, LSAT scores, and GPAs are all measures of how "good" the students at the school will be; presumably you want to be at the school with the better

Then there are a bunch of categories that are more about how much a prospective student should value a degree from the institution

Reputation among law firms, judges

Bar passage rate

Percent employed following graduation

This second group is undoubtedly susceptible to the causal reasoning I identify at the beginning of the post. For example, if School A has a 90% employment rate and School B has an 80% employment rate, then, well, it's more likely that a School A graduate will be employed after graduation than will a School B graduate. But notice also that none of these criteria are really about the relative educational quality of schools; they're instrumental measures of what a degree is worth. (Measures of institutional resources--such as student/faculty ratios--are an exception, I think; they're probably not network-effect measures, but they do probably go to the educational quality at an institution.)

In a fairly roundabout way, I've come to this: Measures of educational quality are generally measures of the strength of an institution's network effect. "So what?" you say. Here's the last piece (and I'd be glad for some clear theoretical justification for this): A network-effect organization either works or it doesn't. There's not much in-between. There's eBay, and then there's a bunch of auction sites that don't amount to much (if they even exist anymore). There are a half dozen instant messaging systems; there were many others, but they failed. There's Microsoft Word, there's WordPerfect hanging on for dear life, and there are a bunch of largely irrelevant other word processing programs.

I posit that the same thing basically happens with law schools: Either they work, or they don't. Leiter says not to make much of differences of 0.1 in his rankings (on a 1-5 scale). I think differences of 0.5 or maybe more don't matter. If a school gets a high-ish ranking, it's because it's got a critical mass, it's got a network of scholars, teachers, thinkers, students that works. If a school gets a low-ish ranking, it's just going through the motions. (Note: I don't mean "going through the motions" pejoratively; there are lots of vocational-school style law schools out there that train people to be truly excellent practitioners. They probably get high rankings in a number of the non-network-effect instrumental categories. The difference between the Yales of the world and these other schools is for another post.)

Of course, the law school world is enough in flux that there are always schools on the cusp between having a just-too-loose network to having a vibrant intellectual life. Schools are always moving up and down the U.S. News list. Northwestern University Law School comes to mind--I think it's gone from the mid-to-high teens to #9 in under a decade. (Of course, all this motion may be shuffling the formula to generate controversy, and hence sales.)

For the prospective law student, I think this is the message: You want a place that looks like its alive. You want to be somewhere where the students are smarter than you. You want somewhere that there are multiple faculty in each subject driving strong sub-networks within the school--even at the expense of being "weak" in some other subject areas. (Yale's sheer mass of faculty is probably partly responsible for its strong network effect success, since it can be strong in many, many areas.) And you want a place that has a network that you'll fit into, since you'll benefit more from a place that has a pretty good network that you fit into than a place with a fantastic network that you won't.

Would I have been happier at Harvard or Yale than at Stanford? I'm pretty sure I wouldn't have been, since I'm more of a "Stanford person" than I am "Yalish" or "a Harvard guy." This is all a long-winded and theoretical way of saying believe the stereotypes because, even if they aren't "true" in some Platonic sense, if everyone follows them, you'll wind up at school with a bunch of people attracted to the same place you were, for the same reasons--everyone can get "a good legal education" this way, regardless of what they think it is. And that, after all, was why people originally came to Bologna, Oxford, and the Sorbonne.

LCD on FCC

2004-04-08T17:50:00.000-04:00

I recently attended a Sage Francis concert--one of the shows on the Fuck Clear Channel (FCC) Tour. Given the bruhaha that's erupted over Clear Channel's increasing monopolization of radio stations and concert venues, plus their close friendship with a certain political party, I thought that moniker was kind of clever. Now that they're taking away half my entertainment on my morning commute (the other half, ironically, is NPR), I wish I had bought the T-shirt.

The New York Times reports today that Clear Channel dumped the Howard Stern Show. For the past two months, Stern has indicated that the end was near. According to his account, Clear Channel had no problem with him at all until he encouraged his listeners to dump Bush this coming November. To Stern, the controversy about Janet Jackson's breast exposure was overdone, and the FCC was becoming overzealous in cracking down on indecency violations. Then, Clear Channel suspended him from six stations, which Stern took as a reaction to his anti-Bush statements. Today, CC gave him the axe.

If Stern is correct about the motivations for Clear Channel's actions, that's pretty scary. Scary almost to the level of conspiracy theory scary . . . "we allow you to control more of 'the public's air waves,' which you will then use to silence our critics." Or maybe it was "you give us favorable coverage when we go to war, then we allow you to control a greater share of each market's radio stations, and then you disseminate our propaganda and silence our critics."

Alternatively, maybe we've come to the conclusion that we really don't need discussions on queefing, sex with midgets, and all the rest of the Stern show's favorites, broadcast over airwaves that are readily accessible to high school kids on their way to school. Maybe the decision to drop him was motivated by more noble aspirations.

The timing of all of this still seems rather curious to me--especially because the FCC has offered no indication that it would fine Oprah for her show's discussion of "tossing salad" and "rainbow parties." Maybe the principle that emerges from all this is that discussing nasty sex is okay if you're a 35-55 housewife (because the odds that you'll act on what you hear are way slim), but not if you're an 18-35 single male (because you might actually try to perform a Dirty Sanchez on an unsuspecting companion).

Whatever. In the end, Stern should just be thankful that his penalty is rather light compared to the death sentence the FCC meted out upon co-host Artie Lange.

Rankings nonsense

2004-04-08T00:14:00.000-04:00

Somehow I once again find myself playing the straight man to Mike's Jonathan Swift. I took a look at his link to Brian Leiter's so-called Educational Quality Rankings. The site is an impressive compilation of numbers, which I guess are supposed to help students select law schools, or provide material for academic onanism and envy. (I suspect it's the latter, because sections like this one about major faculty moves aren't likely to mean anything to a college senior or third-year i-banker considering his or her choices. Heck, I'm a law school graduate and was the President of the Stanford Law Review and I'm barely familiar with a quarter of the names on the list for each school.)

Anyway, I recommend anyone to go to the site and poke around a bit, because there are some real whoppers. My favorite is the following (the emphasis is Leiter's):

"The scholarly quality of the faculty is obviously only one factor for prospective students to consider. It is certainly a very important factor for anyone who takes the education part of “legal education” at all seriously, and it may be the decisive factor for those interested in pursuing careers in law teaching. "

Only a legal academic could write this with a straight face. I think it means that if you don't think your professors' scholarly output will define the quality of your law school experience, then you aren't really interested in getting a legal education. Huh? Ability to produce good scholarship may be correlated with ability to deliver a quality legal education, but I don't think it's a causal relationship. Maybe Leiter means to invoke something broader than scholarly output by his reference to "scholarly quality," but that borders on the tautological--you can get a good legal education if you get taught by people who can deliver a good legal education? Huh? The same mistake is made in the name of the site--Educational Quality Rankings. These aren't rankings about educational quality; they're about scholarship quality. Only a legal academic would think that "scholarly quality" magically gives you superhero powers to teach well, be a good litigator, and solve the world's problems. Sadly, many do.

In fairness, there are a great many more sensible statements on Leiter's site than there are goofy comments like the one above--he recognizes that no survey is perfect, that his methodological choices are quite debateable, and so on. The point I hope to make in a future post is that many numerical surveys ask you to interpret them using the following inference:

School X rates a 4.5 on property A, while School Y rates a 4.1 on property A

Property A makes for a better education

Therefore, School X delivers a better education

The fallacy, I think, lies in making a causal inference (the second step). I think we can infer something from the first step, but in a somewhat different way. More on that later.

A Modest Proposal

2004-04-07T23:33:00.000-04:00

As many of you might know, Harvard has recently surpassed Stanford for the #2 spot in the U.S. News & World Report rankings. Surprisingly, this event has not been posted on SLS's current events website. Initially, I thought it was posted under the title How I Lost the Big One, but, as it turns out, that's a story by Larry Lessig about Eldred v. Ashcroft (and an excellent story at that), not a post by Kathleen Sullivan about conceding the #2 spot. Worse, SLS is currently at #4 on the Educational Quality Rankings, behind Yale, Harvard, and the Univ. of Chicago.

This is unacceptable.

Some, including (according to grossly unsubstantiated rumors) Dean Sullivan, are calling for an inquiry into how Harvard tabulates its faculty. Could Harvard be counting Legal Research & Writing instructors as faculty? Dear lord. Why don't we just put some dolphins in a fish tank and call them faculty? While an inquiry is a good idea, it doesn't go far enough. Some are suggesting that SLS too should count various staff as faculty, including Kathy from the Law Cafe, the president of Law Review (less of a stretch, right, Ben?), and the tech guy who's constantly helping Grundfest with the overheads. But this is just a quick-fix. We need a solution that gets to the heart of the problem.

That's why I'm proposing a logical, albeit radical, solution: Expel the stupid kids. Look, there's no perfect indicator for law school performance. College grades and LSAT scores have proven to be woefully inadequate. Even a kid who got a 4.0 at Stanford undergrad and a 175 LSAT could come in and get a lousy 3.5 or 3.6 in his or her first semester--and that's with the inflated 3.4 mean.

No, the only sure indicator of law school success is law school success. That's why I propose making the first semester probationary. Any student who doesn't earn a 3.7 or higher at the end of the first semester would be given the choice of leaving or sticking around to help out with moot court. Under this plan, professors would be encouraged to focus on the students with promise, which would be clear from in-class comments and office-hour conversations. No longer could stupid kids weigh down SLS by taking Negotiations, Advanced Negotiations, and Mediation in the same semester, 3King their entire courseload, "excelling" in a "clinic," or sucking up to professional-responsibility professors.

Aside from graduating smarter students, my proposal would have concrete benefits for SLS's rank. First, practitioners and peers would be more impressed with SLS grads, thereby improving those two key assessments. Second, while our acceptance rate would remain the same, our graduation rate would plummet. Though the ranking doesn't take that into account now, I trust that that factor would have to be added; and while other schools would rush to begin failing students, we would be sitting pretty at #1. At worst, the low graduation rate would represent a sort of "x factor" in the ranking, bringing us at least past Harvard, which is really all we care about, because everyone thinks Yale grads are a little goofy anyway.

There are other ideas floating around, such as requiring that grads not waste their educations (and lives) doing something outside the law, expelling all the students on the Law & Policy Review, and trying "really, really extra hard this time" to get Akhil Amar.

I look forward to a dialogue.

Krugman

2004-04-06T20:41:00.000-04:00

Okay, here's the question of the night: What is Paul Krugman's job description at the NY Times? Paul Krugman is a former Enron advisor, current professor of econ. and international affairs at Princeton, and a top-flight economist (I'm told; that's not meant to be sarcastic, it's just that I'm not good enough at econ. to judge, and he doesn't write on econ. enough to be judged, as I discuss below). On April 2, 2004, the front-page news was that the economy added 308,000 jobs in March. Krugman's April 2 column was about how the media tried to hush-hush some "bored boy" video shown on David Letterman. I'm not going to criticize him for that, because he may not have known about the 308,000 jobs before that piece was already slotted to run, though that's unlikely. Anyway, I was ready for a piece on the jobs today, especially because Krugman has been leading the charge against Bush's economic policy (rightly or wrongly). So I was interested to read his take on the job creation. I was disappointed. His column today is about mercury poisoning (of course blaming Bush).

Now, I don't have a big problem with people criticizing Bush. But what is Krugman doing? His "thing" is economics, he's been bashing Bush's economic policies and the "jobless" recovery for months, and yet he fails to address the 308,000 jobs the economy added in March? I'm blown away.

"A High Tech Tuskegee Experiment" and thoughts thereon

2004-04-06T00:45:00.000-04:00

I got a call at work today from a guy who wanted to talk to the judge I work for. The judge was at lunch, but the guy seemed to think I was good enough to talk to, and launched into his spiel about being the victim of all sorts of U.S. government plots. Specifically, his complaint centered around him getting zapped by ultrasonic electroshocks or something like that. And his web site had been repeatedly hacked by the feds starting in '99. (Note 1: There ain't no such thing as "ultrasonic electroshocks." Note 2: This is not exactly what the guy described the torture as; I just can't remember his exact words. Note 3: Sir, if you're reading this blog, which is not exactly likely, I apologize for not taking better notes during our conversation.)

Anyway, he sounds like a nut, no? And he goes on and on for about five minutes--like something from Adam Sandler's "Excited Southerner"--and eventually I ask him, "Yes, sir, but what do you expect us to do for you?" (Note 1: I've learned from other eccentric callers not to be sympathetic. It only prolongs things. Note 2: I thought about giving him a mini-lecture in American Constitutional Law and civil procedure to convince him that phoning up a federal court was not likely to cure him of his ills. I decided against it.)

He explains that he wants to get the word out, to tell people of position and importance in government about his plight, in the hopes that they will discuss it. He feels that, if only people knew about this "high tech Tuskegee Experiment," they would act. I closed the conversation by suggesting that he send us some written material, and I gave him the address.

I thought that three things about this conversation are worth thinking about. First, the Tuskegee Experiment (or Tuskegee Study) belongs to that interesting category of anticanonical moments--the things in history that are so uniformly reviled and regretted that nothing good can be said of them, things so outside the canon of the approved parts of our collective past that they belong to the anticanon. (Other examples, from the grave to the whimsical: the Dred Scott v. Sanford decision of the Supreme Court, Adolf Hitler, and the Edsel.) Things in the anticanon are like the elusive "true black" of photography and video screens, they are a reference point, the ne plus ultra (or really the ne plus infra, I guess). Relativist modern society may hold that there's nothing 100% good, but it has yet to tell us that there's nothing 100% bad, and the Tuskegee Experiment is one of those things.

Second observation about my conversation: The guy sounded crazy, right? But he had one thing dead-on, although he was a bit of a conspiracy theorist about it. It is true that the elites in government do all talk, do lunch, do call one another up and chat on the phone, etc. To be overdramatic about it, there really is a cabal of a few thousand people running the show. So he wasn't too far off in thinking that by planting the seed in their lunch conversation, he might get some attention for his plight. I'm offering this as a deeper comment on "how things get done"; I'm not a total cynic, but I do believe that someone in this man's position is likely to get much more attention (and if need be, relief) using the approach he's using, than by filling out forms, sending letters to low-level bureaucrats, etc.

Third observation: The guy sounds crazy, right? But how do we know that? Everyone thought the patients in the Tuskegee Experiment were crazy (well, they were, but that was because they weren't receiving treatment for their syphilis), and nobody at the time believed that government could do such an inhuman thing. But now we know the truth. How do we know that the same isn't true about ultrasonic electroshocks (or whatever)? This raises some epistemological questions that I'm hopelessly unqualified to comment on--like, how do you come to decide something is true? And is that different from knowing something to be true? Here, I've ruled out the truth of what this guy was saying on (1) grounds that we might call the presumption of regularity--basically, governments don't do this sort of thing, so he must be wrong, and (2) the basis that his story sounded nuts. Reason (1) isn't so great, as the Tuskegee Experiment shows. Reason (2) isn't really a reason, but just another way of stating the problem--what does it mean to "sound nuts" and why do we come to that conclusion about some stories and not others?

A lot of unanswered questions. Very un blognoscentic for my first post.

2004-04-05T22:54:00.000-04:00

So the recent events in Iraq, specifically Sunday's uprising which was exhorted by the Shiite cleric Moktada al-Sadr, got me musing on the following question: What's a more valuable quality, questioning yourself, or questioning authority? I've long believed that there's no greater quality than the understanding that one might be wrong. More than "might be," more like "very likely is." But now I'm thinking that that view is short-sighted. That is, self-doubt (as I'll call it, though "self-awareness" might be better) without the ability, or even the tendency, to question authority, leaves one open to being preyed upon by anyone with the will and the means. The minions of tyrants might be excellent at doubting themselves, indeed too good at it.

I have no clue where I'm going with this. Take me, for example. I'm great at doubting authority, but terrible at doubting myself. Doubting authority comes quite naturally to me, but I have to consciously take a sort of "time out" and turn the light inward before I can really question myself, my choices, and my beliefs. I know I'd be a better person if it came more naturally, because in heated moments, without the benefit of that time out, I can't see myself and my mistakes.

All right, fine, since I'm only a step away, might as well end this post with some Zen:

"Sometimes I go about in pity for myself,
and all the while
A great wind is bearing me across the sky."
-- Ojibwa saying

And you can't end a quasi-Zen post without Basho:

"We gaze
even at horses
this morn of snow."

Arsenal 0--1 Man. Utd.

2004-04-05T22:33:00.000-04:00

My condolences to John and Ian. I just saw the game. Pires killed you with that header over the bar. There's still the Champions League.

2004-04-05T22:27:00.000-04:00

Pretty gruesome article in the NY Times today about baby-seal clubbing. I was too young to be "aware" of this practice when it was last making headlines twenty years ago. For me, this was something you brought up to poke fun at someone for being a hardass, e.g., "Why don't you go club some baby seals while you're at it." Little did I know that there's a whole industry of baby-seal clubbers. Is there a politically correct job title for these people? Are they okay with "baby-seal clubbers"? They didn't seem to have much of a problem letting the Times photographers get up-close-and-personal. If you link to the article, there's one shot from about twenty feet away where the baby-seal clubber is in mid-swing and this baby seal is just laying there waiting for it. They don't seem to put up too much of a fight. In fact, according to the article, they're physically incapable of putting up a fight. Isn't the nature kingdom supposed to have a contingency plan for all baby animals? Isn't the mother supposed to be around to protect the baby seal? (Obviously it's not going to be the father; it's not just homo sapiens that perpetuates dead-beat dads, the nature kingdom's full of them.) Cicadas have a contingency: They make sure there are enough of them(selves) to satiate the appetites of their predators. The beauty is in the simplicity, no? "How many of us can a million birds eat before we can reproduce? 500 million? Well then, we'll send a billion." (Here's that article.)

I digress. Anyway, twenty years ago there was a huge outcry against baby-seal clubbing (sorry, I can't stop writing it out, I just can't believe people actually club baby seals, though I'm unsure why I'm so surprised) which virtually shut down the industry (am I using "industry" properly here?). Now it's back, thanks to a booming trade in Russia and other Asian countries. But the outrage isn't there this time. Why? Well, in part because new laws prohibit baby-seal clubbers from clubbing baby seals younger than twelve days. How does that help? Can't the baby-seal clubbers just wait a few extra days? That's a rhetorical question, as I know for a fact that they can. Apparently their fur is less white after twelve days, but while that may make the fur slightly less valuable, it certainly doesn't shore up the market in any significant way. Is it because twelve-day-old seals are mature for seals? I think that's also wrong, because the article referred to the current clubbers as "baby-seal clubbers," even though they're clubbing twelve-day-old seals. Is it because twelve-day-old seals have developed some defense mechanism that eleven-day-old seals have not? The point? There's always a way to justify your boredom with an issue? Mike doesn't know enough about the differences between eleven-day-old seals and twelve-day-old seals to make an informed judgment? You be the judge.

2004-04-04T21:34:00.000-04:00

I find Larry King funny. According to his official CNN CV, his show is consistently one of CNN's highest-rated. Before joining CNN, King was a radio commentator, and won all sorts of awards for excellence. This site describes his interview style as "characteristically frank and no-nonsense." What am I missing? Yes, King gets some great guests (why??). He's interviewed a host of presidents, high-ranking government officials, dignitaries, Washington-insiders, celebs, etc. He's also regularly tapped to moderate presidential debates. But left to his own devices, he seems to relish the "sensational" story more than any other. How many episodes in the past six months have been devoted to Laci Peterson? Furthermore, whenever he does get a guest from whom I'd really like to get some answers, he asks softball questions that leave me shaking my head, having learned nothing. If he asks a follow-up (a big "if"), it's equally toothless; his favorite seems to be, "How did that feel?"

I had to stop watching Dennis Miller's show on CNBC after the first episode for the same reason. Actually, I shouldn't say "the same" reason, as Miller, from whom I was really hoping for some nonpartisan, hardball, probing questions, basically pandered to Arnold Schwarzenegger (whom he helped elect governor of California) for the first half-hour of his first episode. And this after one of his little "rants" about how he was going to put every guest on the spot, force straight-talk, etc. etc. Then it's a 30-min. lovefest. If anyone bothered to watch, the first ten minutes of the "interview" was Miller telling Schwarzenegger how good a governor he was going to be, and Schwarzenegger telling Miller that he couldn't have been elected without him. It was pathetic.

I guess my question is, in an election year, where am I supposed to get my news from? Normally, when I want to figure out where the "truth" is, I read the NY Times editorial, then I read the WSJ editorial, and I know the truth (still in quotes) is somewhere in the middle. But lately, the middle has become vaster and vaster. If anyone saw 60 Mins. tonight, another administration official has come out (he says he's a whistleblower, and he very well might be, but who knows) with a Bush coverup. This time, Bush is accused of covering up a toxic coal-slurry spill. The whistleblower, Jack Spadaro, calls it (and CBS news bills it) as "one of the worst environmental disasters in U.S. history." That's a heavy charge. Is it true? Does CBS have an agenda? Is that an incredibly naive question? Am I naive to even hope that there's someone out there this year without an agenda?

As my experience is grossly insufficient to make any comparisons, I've been speaking to my parents about this. They were young adults during the Vietnam era, and yet they say they've never seen the country this polarized. And obviously there are all sorts of costs associated with such extreme polarization, but I guess the one that frustrates me the most (though I really haven't thought through all the others) is how hard it's become to find the truth. Yet for some reason I'm expecting a post from Ben telling me that another plausible effect of such polarization is more truth, as each side tries to shed light on the misdeeds of its adversaries. But I think that that "light shedding" is more spin than anything else.

Virgin Blog Post

2004-04-04T14:32:00.000-04:00

Michael, while it may be true that you are in constant need of affirmation (a topic which your mother and I have spent many an evening discussing over too many glasses of wine), I think your idea to create a blog was a very thoughtful one indeed. Nicely done. Just finished one of my typical Sunday afternoon rituals: reading Safire's "On Language" when I should be billing (note -- I am actually at the library -- sad and true). In today's discussion Safire asks "which is more precise: close friends with or a close friend of? Apparently, "friend of" refers to an established relationship while "friends with" is used to describe the attitude, meaning "friendly toward." Anyway, little nuances like these fascinate me -- well that and the fact that I would much prefer spending my Sunday reading the Times rather than clicking away on Westlaw.

First post

2004-04-03T22:08:00.000-05:00

I find this paralyzingly frightening. For anyone who stumbles across this weblog and wastes time reading it, my hope in creating it was to keep in touch with my friends, all across the country. I'll be inviting them to post, and hope they choose to. I thought it was an excellent idea until I actually created the blog and "realized" that it was "out there." When I created the blog last night, what I found particularly horrifying was that blogger has a list on its homepage of the ten (or so) most recently published blogs. I can only hope that's not quite as literal as it sounds. I'm horrified to think that this site might have attention called to it.

Although, I think I'm (1) being too egocentric, and (2) giving too much credit to the content on the internet. That is, (1) no one out there cares about me or this blog (whew!), and (2) there's so much godawful crap on the net, how much worse can our content be? (And by "our" I mean myself and any of my friends who choose to get involved. I only add this parenthetical because god forbid anyone thinks that there's some sort of "team" working on this. I have a sense that that would really be pathetic, though I'll admit I'm unsure why.)

So anyway, friends (certainly the only people reading by this point), what should we do with this little piece of virtual real estate? As I've told you all one-on-one, I really see big things for this blog. Not in the sense that we're going to have the daily hits of How Appealing, the passion of Andrew Sullivan, or the discourse of Volokh or Legal Theory (how sweet is that, I just did the "linked text" thing), but just in that we can really keep in touch, know what each other is up to and thinking about. That's what I'm hoping for. Just to get a conversation going. I am so ignorant. I'm often so frustrated by my inability to look at things from another's point of view. Which is why I feel so lucky to know so many insightful people. But as I said in my email, there aren't enough opportunities to really hear where you're all coming from. So even if everyone posted even once a month, that would be more than I hear from many of you, and it would add a new perspective to my little close-minded existence.

I'm pretty sure that this post it "too long" at this point. I wanted to make sure to have something up before I start inviting everyone to get involved. (Also, feel free to compliment me on the clever name of the site, as most (all) of you know how I need constant affirmation.)