Happy Halloween!

Time for something a little scary: American Lawyer's ranking of firms' summer associate programs!

It's always a little amusing the extent to which we as a society -- and the law industry in particular -- are so enamored of listings and rankings. Brian Leiter fairly frequently addresses the pitfalls of rankings -- the way they unhelpfully influence behavior by both students and institutions -- in general; and Jeremy Blachman has some good insights and amusing commentary on the AmLawyer survey linked to above.

In many ways, the simplistic methodology and dubious rationale behind most rankings represent direct affronts to the deeper thinking that law school is supposed to encourage. But law school also teaches some hard lessons about time management, and thus law students are also famous for their willingness to forsake the hard work of thinking for whatever time-saving shortcuts they can find that does their thinking for them -- be these shortcuts commercial outlines or firm rankings. And hence the whole cottage industry that has evolved around ranking schools and firms, producing study aids of all sort, and so on.

I leave it to readers to glean any insights from the AmLawyer survey. You can make up your own mind as to whether I've just given you a trick or a treat.

Spy Games, 2.0

In this earlier post I began a discussion of the problem of spyware on computers and actions taken by the Feds to slow them down.

A few minutes ago I noticed this AP articleon Yahoo. It's a great overview of the problem of spyware and the challenges in attacking them. While I'll have more commentary later, rest assured that if you are so complacent as to think you're perfectly ok surfing the web (with or without anti-virus software protection), you're sorely mistaken. It has almost reached a point where with the exception of a few major websites, almost everything else has some spyware ready to be installed.

Specific Performance and Satisfaction

This was "Sexual Assault Week" in Crim Law. On the issue of marital rape exemptions (non-consensual sex within the marriage not categorized as rape), our discussion group struggled with implicit sex provisions of the marriage contract. We discussed exclusivity contracts, right of first refusal, etc. But I think we missed the point -- an implicit marital sex provision is merely a bargain-for-a-chance.

Quotent Quotables

Random quotes, mostly taken out of context.

Prof. Moran, Torts

“A doctor says you have liver cancer and you have 6 months to live, but you do better if they say you have liver cancer and we’ll do our best to keep you alive. I mean sometimes it’s better when you don’t have a deadline…no pun intended.”

“Dr. Shriro [classmate] is out to get me, he’s trying to cut me open” (voice of schizo).

“Let’s say I see Bill Gates drowning, he says, ‘Help me Moran, help me.’

‘Oh you didn’t take swimming lessons? What’s it worth to you
Bill?’

‘Anything Moran, anything.’

‘Fine I’ll take the estate in Seattle.’

I rescue him and what does the ingrate do? Not pay up because the contract was under duress. Should we have a reward system?”

“I hate to break it to you, but your friends are not your family, and I don’t care what the phone companies are trying to tell you”

“Oh come on don’t give up on liability so easily.”

“I hate to make the institution sound suffocating, but it’s a lot harder to get out of marriage than employment.”

“You’re not willing to sacrifice your life for this malfunctioning projector?”

“Now it’s clear that this person does not give a license to enter the property because Phido is wearing a sign that says ‘I hate solicitors’ or better yet ‘I bite solicitors.’”

***
Prof. Westen, Crim. Law

“guys walk by a window and see someone undressing…they stop and look.” 10/7/04

“Think about this because I’m going to call on you to talk about your last sexual encounter. Oh fuck, I’m not going to do that.” 10/21/04

***
Case Law (Love that was just not meant to be)

"Linda Riss was terrorized for six months by one Pugach who had formerly dated her. He warned that if he could not have her, 'no one lese will have you, and when I get through with you, no one else will want you.' She sought police protection unsuccessfully. She then became engaged to another man and at a celebration party she received a call saying that this was her last chance. She again sought police help but was refused. The next day a thug hired by Pugach threw lye in the plaintiff's face, leaving her permanently scarred, blind in one eye, and with little vision in the other." Riss v. City of New York, 22 N.Y.2d 579 (1968).

“Just as a side not, once Pugach was released, he and Riss got married. He was later in the news because he cheated on her.” -- Prof. Moran.

Who Said Cite-Checking Is No Fun?: A Post For Ann

Consider this my dedication to Ann's long-anticipated and very welcomed membership on this fast-growing blog.

A bit of backstory: in the first few weeks of school, it seemed that every time I ran into Ann (read: interrupted her in mid-conversation), she was talking about sex. Since then, it has become a running joke that she should start talking about sex whenever I approach.

So when I came across this quotation while cite-checking an article for the international law journal, I knew I had found the perfect way to welcome Ann to the blog. With a vaguely sexual comment, taken wholly out of context:

"In a formulation that may strike some as appropriate even outside the realm of evolutionary biology, one author states: 'The problem of sex is still more or less unsolved.'"

Dear readers, I ask you simply to reflect on that last statement for a few moments. Take your time. Has one sentence ever been possessed of such nuanced and multifarious meaning?

"The problem of sex is still more or less unsolved."

Enter the Dragon

With great pleasure, I welcome Ann to this blog.

Shame on Whom?

I had hoped to enter the fray on a more positive note . . . but Armen's post on stats from the right finally caught me.

I don't believe the comparison in question, "Top 1% of tax earners pay 33% of aggregate revenue to IRS," is bad statistics. Reasonable people may disagree about the normative assumptions underlying the claim that the top percentile of tax earners paying 1/3 of income tax revenue is unfair. But the interpretative statistics are not necessarily wrong.

One comparison relevant to income taxation fairness is the one Armen described -- a comparison between income earned (as a percentage of national income) and taxes paid (as a percentage of aggregate revenues). And this comparison is made by folks all across the spectrum.

Another comparison might look at the share of taxes paid per person. For example, in a country with 100 people, it might be relevant to fairness to consider whether one person (perhaps the top earner) pays for 1/3 of the country's services. This is the comparison the conservatives were interested in. They drew attention to the top 1% only as a means to identify a group that pays more than its 1/N share of taxes (N is the size of the subgroup).

It is not surprising that some conservatives might have a different normative approach to taxation. And it is worth noting that looking at taxes paid per person is a veiled reference to a poll tax -- a pure poll tax on the whole population would create an equal tax burden of 1/n for every member of the population (where n is the whole population) -- the most conservative approach to taxation.

Back in the USSR

So I was at a talk given by two officials from the Afghan national bank (Da Afghanistan Bank) this afternoon. And I look across the conference table, and another student was wearing a throwback CCCP sports jersey. And I kind of thought to myself: what kind of moron wears a CCCP jersey to a talk given by officials from a country that the CCCP invaded and occupied (and set off a consequent civil war in) for over a decade?

I am all for the vintage look, and throwback jerseys, and even political statements on t-shirts. But the Che shirts. They've got to go. The man ran the first death squads and labor camps in Cuba. Not cool. And wearing an CCCP shirt to a talk where the speakers repeatedly mention the legacy of the Soviet invasion and subsequent resistance and civil war. Not cool.

I have friends who collect Soviet memorabilia. Probably, there's no real harm in it. But somehow, it makes me uncomfortable that symbols of dictatorship and oppression (which I believe CCCP now is) are now a kitschy fashion statement.

Addendum: in defense of the student in question, he took off the jersey early in the talk. Of course, maybe he was just hot.

Posner on Law Reviews

There has been an interesting discussion in the blawgosphere (yes, that's a play on words involving "blog" -- which I surely needn't, but still will, remind readers is itself a contraction of "weblog" -- and "law") about the role that student-edited journals play in legal academia and the life of a law student.

The discussion was tripped off by none other than the very eminent Richard Posner, who ruminated on the issue in this Legal Affairs article. U Texas law professor and philosopher Brian Leiter weighs in with his reactions (he largely agrees with Posner) here. Over at Crooked Timber, Micah Schwartzman has a very thoughtful and law student-sympathetic reaction of his own to some of Posner's points. And finally, on the Volokh Conspiracy, Orin Kerr offers his own perspective on one issue raised by Schwartzman and Posner: the length of law review articles.

All of the articles raise interesting issues for law students, professors and schools to consider as they seek to advance legal thought, educate students and provide appropriate and efficient outlets for scholarly work. I urge everyone to take a look.

Tax me once, shame on you...

To all Republicans, Libertarians, fiscal conservatives, et al:

Why do you guys make fools of yourselves on national TV (if Fox News qualifies as such) when discussing taxation? So I'm watching an indoctrination session put on by Neil Cavuto and some hack from a conservative think-tank talking about how the tax burden is unfair. His evidence? IRS tax stats from 2002.

Basic argument: Top 1% of tax earners pay 33% of aggregate revenue to IRS.

This is about as idiotic a mistake as you can make without being in 5th grade math. Let's go over some basic terminology. When you say top XX percent, you are actually talking about a percentile. Top 1% = top 1 person out of 100. The latter is an actual percentage. 33% = 1/3 of total. So, 1/3 of money comes from 99th percentile. Why does this matter? Why is this relevante to a fair taxation policy? It's not that's the answer. If you want a fair comparison then you look at the share of the national income earned by the 99th percentile. They earn for example 20% of all the income in the nation, but pay 33% of the taxes...hmmm sounds unfair. Or maybe they earn 75% of all the income in the nation and pay 33% of taxes...hmm sounds unfair in the other direction. I don't know what the stats are and I don't care. I'd just expect people to understand basic principles of statistics when they're working at a think-tank rather than spouting off meaningless numbers that have no bearing on the argument one way or another.

Just to make my point clear, even if there was a flat tax rate, as conservatives like Forbes advocate, THE TOP 1% WOULD STILL HAVE THE OVERWHELMING TAX BURDEN. Get it? Use better stats please. It's not too much to ask...unless you're Fox News.

Spy Games

Federal prosecutors have successfully obtained an injunction against "SpyKing," the first target in the FTC's war against spyware. Since this is an area of law and technology that I'm especially concerned about, I'll be writing more about this in days/weeks to come.

WHAT IS SPYWARE?

This is very hard to define, and I suspect finding a definition would be the core difficulty for the Feds and the Courts, since any broad definition would infringe on legitimate softwares out there. For example, we might define Spyware as any software delivered to the user without his permission. The problem with this is that a lot of legitimate webstites place tracking cookies on user's browser. For example if you visit www.amazon.com you will notice the "Your Favorites" section. This is in part because of tracking cookies (in other part they use some algorithm based on your prior purchases). Another use is with respect to log-in authentication. Everytime I visit Yahoo it has the weather info for Berkeley. Marvelous, how does it do this? Through a cookie. However this is not much of a problem for the definition presented. Yahoo installs a cookie only after I check "remember me" when logging in initially. These boxes are a way for the user to grant the server permission to install a tracking cookie. Aside from these instances, there do not appear to be other serious uses of software installed without permission.

The other approach involves a more specific definition, such as any software installed by a third party for tracking and advertising purposes. This would exempt Amazon and Yahoo regardless of the user's permission. They are not third parties since the user directly visits their website. The problem with this definition is that it's easily circumventible. Off the top of my head, I can see sites redirecting the user to another site where the tracking cookie is installed. Or once one cookie is installed it redirects you to other such sites whenever you search for something, or click on something. Pop-ups present another barrier to this. Lastly, this definition will not capture third party software with a primary purpose for A, but a secondary purpose for B (advertising and tracking). Remember, spyware need not be limited to cookies. In fact, I don't think cookies would even qualify as software.

Regardless of the definition used, this will be an area of the law that will be heavily litigated, especially as technology evolves.

The effect of SpyWare is almost catastrophic. Over the past 2 years or so, I have noticed more and more people complaining that their computers are too slow and that they have too many pop-ups. This is the end result of spyware invasion that is uncontrolled, combined with user inability to clean their computers. First, a lot of software (third party or not), when installed place themselves on the start-up list of Windows. This means everytime your computer is turned on, the software is running, regarldless if you use it or not. People do not know how to prevent software from starting up (click on start, then run, then type "msconfig" and hit enter. Go to selective start-up and remove programs you do not need. There are certain programs required by manufacturer, so it might be a good idea to give your PC maker a call while doing this). Each program that runs, takes precious memory space in the computer's RAM (working memory of a computer, where information is stored temporarily while you are actively using it). Second, spyware lead to pop-ups and a general slow down to your internet browsing ability. There are programs out there such as Pop-up Stopper that simply stop browser windows from launching (if you need a second window opened you hold down CTRL key). There are lots of programs out there that work like virus scans. They scan your computer for spyware and ask if you want to remove them. Spyware Search and Destroy and Adaware are the two I'd recommend.

These simple steps can greatly mitigate the effect of spyware. However their impact is such that the FTC is taking notice now. Next up, legal issues.

Court TV

The realm of reality television has hit a slide ever since the popularity of CBS's "Survivor." During the before-Survivor era there were such shows as Road Rules (minus the gender/sexual tension based challenges), Cops, Sightings, Rescue 911, Unsolved Mysteries, etc. Since Survivor, every reality based show is a slight change in the cookie-cutter forumla of framing everything as though a challenge to "survive." Bachelor? Well good luck with that first impression in a pointless effort to miss the first round of cuts as if you really are THAT interested in her. Harvard MBA? Good luck dealing with other, worse prima donas. A reckless billionaire who wants to get in on the action during the basketball off-season? Welcome aboard. A rebel billionaire who has just returned from another attempt at setting the world record in hot air ice skating and doesn't want to miss out on a good trend? There's also a place for you. And we can't leave the worm-eaters, angry college students who have no idea how privileged they are, and LAWYERS away from the dinner table.

That's right, lawyers. The latest addition to this crap is FOX's "The Partner." In case you're wondering how this might be different from the Apprentice, well here it is.

1) There are two teams of lawyers
2) One team consists of "polished ivy league graduates." The other, graduates from "lesser pedigrees."
3) "They will argue real cases ripped straight from the headlines."
4) "And each weak one member will be kicked off the team."

AAAAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHHHHH! There aren't enough screams in the world for this one.

Why must the network that broght us The Simpsons, Married with Children, Melrose Place, Models, Inc., In Living Color, Family Guy, X-Files, Wildest Police Chases 1-589, among others, be so evil? Why must their number 1 cable guy be the biggest pervert? Why must THEY create this lawyer reality show? WHYYYYYYYYYYYYYYYYYY?????

I actually think I'm framing the issue incorrectly. Why must people from LA (aspiring actors, the whole lot of us) go to law school? All I know is that one way of putting out a fire is cutting down the fuel.

***
Asides:

1) Two of the shows I listed are there as a joke. I actually hated them. As a hint, I also hated Party of Five.

2) I hate Nancy what's her name from the real Court TV. She's always on Larry King Live talking about how every not guilty verdict is an injustice. I wouldn't be so troubled if callers actually called in to say, "Hi Nancy, I've actually been watching for a while and I still think you're an idiot." NO! They call in to praise her.

Larry: "Smallsville, South Dakota...Yer on dee aaaair."
Caller from Smallsville: "Hi Nancy, I just want to say we love you here..."

Just so I don't sound like a fool, the reason I hate her is because regardless of the issue, the case, the person, she's ALWAYS FOR A CONVICTION AT ALL COSTS. Gee Nancy, I wonder if you're a former prosecutor. But that's no excuse. Defense attorneys on Court TV and on Larry King routinely talk about both sides...or how an outcome could reasonably go both ways. The prime example of this is Mark Geragos. When Peterson was first arrested, he AGREED WITH NANCY, that Peterson is screwed based on the evidence. What did he do? Turn around and defend him. Newsflash to Nancy Grace, that's her last name, Grace, about as unfitting as Impartial..."PROSECUTORS DEFEND THE INTEREST OF THE PEOPLE, AND THIS MEANS JUSTICE...NOT JUSTICE TO ONE SIDE."

3) Jon Stewart will be featured on 60 Minutes tomorrow at 7 PM on CBS. I'm thrilled.

4) Lastly, with respect to this Fox show about lawyers, it will have nothing close to reality, but it will do about as much harm to the practice as John Grisham over the course of 8000 novels turned movies by creating misconceptions.

5) In the interest of equality, I will now draft a proposal for a reality show based on the daily workings of network TV executives. Any suggestions about how to go about this would be greatly appreciated.

American Graffiti, et al

Written above urinal inside men's room at Jupiters:

"Stop Vandalism."

Written over that in different ink:

"YES!"

***

Just for shits and legal giggles, the fight against beluga sturgeon caviar is led by an environmental group called Caviar Emptor

A House Divided (with new walls)

The Onion had this Electoral Map from a while back. Tacitus' post below just reminded me of it.



All of their election articles can be found here

The Justice Is Blind, But A President Can See

Bad pun, I know. Sue me.

So the always interesting Dahlia Lithwick has a new post up at Slate riffing on what the presidential election might mean for the Supreme Court. Lithwick has broached this topic before, notably when she was guest-writing on the NY Times Op-Ed page a few months back.

In general, I agree with her basic point: around election time, people always trot out the ages of the older Supreme Court Justices and talk about the next president's ability to "shape the future of the Supreme Court." It hasn't really happened. In two terms, Clinton got to appoint, what, about two justices I think (Breyer and Ginsburg). It seems there is about one appointment per presidential term. All this talk of "four seats on the court" coming up in the next term seems a little over the top.

But Lithwick is also right in her concluding point. Voters should be mindful of their views what kind of justice they'd like to see sitting on the court in the future as they head to the polls in November. Because even if their foreign policy and 90% of their domestic policy looks the same, Bush and Kerry's respective preferences for Supreme Court nominees are wildly divergent.

Wisdom of Solomon

Phil Carter of the Intel Dump is having an online debate with Yale Law School 3L Adam Sofen regarding the Solomon Amendment (withholding federal funding to schools that don't allow Fed recruiters...which creates a dilemma for many law schools who have a non-discrimination policy for potential employers and the military which has a "don't ask, don't tell" policy towards gays). The debate is hosted by Legal Affairs Magazine.

***

I personally have not formed an opinion on the matter one way or another. As someone who is seriously considering JAG as a career option, I'd certainly like the opportunity to meet with military recruiters. As someone who believes in unconditional equality, I think it unfair to coerce schools to abandon their policies when it comes to the Federal government.

***

Periodic comments on specific points made by Carter and Sofen...

Carter writes, "The military doesn't exist as an institution of equality or democracy—it exists to fight and win America's wars, so that equality and democracy may flourish here. By way of historical analogy, the U.S. military is Sparta, and you cannot impose Yale's Athenian values on Sparta and expect it to still win wars."

Ouch. That's all I can say. This is again another example of popularization of ancient history. I can't even imagine Victor Davis Hanson making such allegation. Rather than discussing various ancient wars where the Athenians and Spartans fought, I think Pericles' comments sufficiently make the point. In the famous funeral oration, Thucydides, the historian of the Peloponnesian War, paraphrases Pericles as saying,

"Then, again, our military training is in many respects superior to that of our adversaries. Our city is thrown open to the world, though and we never expel a foreigner and prevent him from seeing or learning anything of which the secret if revealed to an enemy might profit him. We rely not upon management or trickery, but upon our own hearts and hands. And in the matter of education, whereas they from early youth are always undergoing laborious exercises which are to make them brave, we live at ease, and yet are equally ready to face the perils which they face. And here is the proof: The Lacedaemonians come into Athenian territory not by themselves, but with their whole confederacy following; we go alone into a neighbor's country; and although our opponents are fighting for their homes and we on a foreign soil, we have seldom any difficulty in overcoming them. Our enemies have never yet felt our united strength, the care of a navy divides our attention, and on land we are obliged to send our own citizens everywhere. But they, if they meet and defeat a part of our army, are as proud as if they had routed us all, and when defeated they pretend to have been vanquished by us all.

If then we prefer to meet danger with a light heart but without laborious training, and with a courage which is gained by habit and not enforced by law, are we not greatly the better for it? Since we do not anticipate the pain, although, when the hour comes, we can be as brave as those who never allow themselves to rest; thus our city is equally admirable in peace and in war. For we are lovers of the beautiful in our tastes and our strength lies, in our opinion, not in deliberation and discussion, but that knowledge which is gained by discussion preparatory to action. For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection. And they are surely to be esteemed the bravest spirits who, having the clearest sense both of the pains and pleasures of life, do not on that account shrink from danger. In doing good, again, we are unlike others; we make our friends by conferring, not by receiving favors. Now he who confers a favor is the firmer friend, because he would rather by kindness keep alive the memory of an obligation; but the recipient is colder in his feelings, because he knows that in requiting another's generosity he will not be winning gratitude but only paying a debt. We alone do good to our neighbors not upon a calculation of interest, but in the confidence of freedom and in a frank and fearless spirit."

I don't think this is as bad as my Crim law prof claiming "eye for an eye" came from the Bible, but again, I'd expect Carter to be familiar with the particular Athenian pride in serving bravely, while managing the army democratically (e.g. having 10 commanding generals with alternating days of command). There might be an argument made about Plato and later philosophers criticizing democracy (because Athens lost to Sparta), but the blame could just as easily fall on individual idealogues. Bottom line, Athenian values served well, if not better than Spartan values, on the front lines.

***

I just saw a story on CNN about military recruiters. One portion talked about the No Child Left Behind Act forcing schools to give recruiters the addresses and phone numbers of all 17 and 18 year olds, at the risk of losing federal funding. To me this is FAR, FAR more troubling than anything forced on the law schools. I can't underestimate the value of free speech and free assembly, but to force schools to divulge private information...I wonder if Carter and Sofen will discuss this aspect?

Bases British on Balls

Today I stayed home from classes since I was sniffing, sneezing, coughing so I couldn't rest because of no medicine (appologies to the folks at NyQuil for stealing their slogan). Since I was home I caught my fair share of daytime programming, which in this case included Champions League Soccer on ESPN2, featuring Real Madrid and Dynamo Kiev. During the match, Real Madrid striker Ronaldo (a Brazilian) was hit in the groin area on two separate occasions a few minutes apart. The British announcers then began a series of remarks all the way to the end of the game.

"X marks the spot once again"

"He's gonna be singing in a different key that's for sure."

"This game's got a good tempo to it...wide open...and entertainment provided by Ronaldo for good measure."

"A lot of the passes by Dynamo Kiev are just because the balls been taking awkward bounces. The ball has just done a lot of bouncing tonight...just ask Ronaldo."

The Liberals doth protest too much, the mayor thinks

Already quite a few people in the blogsphere have noted the 11th circuit decision in Bourgeois v. Peters. The case involves the City of Columbus, Georgia seeking to scan all protesters with metal detetectors during a meeting of the School of the Americas (the wonderful Army unit whose mission it is to train death squads in the Western Hemisphere...among other things). Here's the highlight from the opinion written by Judge Tjoflat...and it really is great writing:

We also reject the notion that the Department of Homeland Security’s threat advisory level somehow justifies these searches. Although the threat level was “elevated” at the time of the protest, “[t]o date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has been raised to orange (high) six times.” Wikipedia, Homeland Security Advisory System, available at http://en.wikipedia.org/wiki/Department_ of_Homeland_Security_Advisory_System (last referenced Aug. 16, 2004). Given that we have been on “yellow alert” for over two and a half years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. Furthermore, a system that gave the federal government the power to determine the range of constitutionally permissible searches simply by raising or lowering the nation’s threat advisory system would allow the restrictions of the Fourth Amendment to be circumvented too easily. Consequently, the “elevated” alert status does not aid the City’s case.

I think this pretty much slams some of the attempts by the DOJ to kinda sorta go around the courts. And it does so citing Wikipedia. I wonder if that web source is going to become the official source for common knowledge. Well the weather at the time was cloudy, with 30% chance of rain (Weather.com). Even in this case, imagine what great lengths the court would have to go through to find the information...Homeland Security documents? News archives? Director Mueller's comments that at the time we have no credible threats?

Here's the troubling part...if our nation's history is any indications, there will always be a large segment of the population more than eager to trade their civil liberties for miniscule increase in their sense of security (rational or not). I don't think that placement of the wikipedia entry is an accident. The internet's power to air opinions cannot be stressed enough (this blog's devotion to toilet humor being the prime example of that power). Unlike previous instances (following WWI, WWII, Red Scare), it is now far easier for the courts to gauge public views instead of blindly deferring to government arguments.

One of the judges on the panel was from the 9th circuit...so I wouldn't read too much into it. :)

UPDATE: Not surprisingly over at The Volokh Conspiracy both Prof. Eugene Volokh and Prof. Orin Kerr offer their takes on the Wikipedia citation described above. Naturally they do not take on as sympathetic a view of the use of the online resource as I do.

Cruel Intentions in Criminal Punishment

Our crim law prof tends to ramble quite a bit about justifications for punishment (and pedophilia/sexual misconduct in general). So it shouldn't come as a surprise that I've thought a bit about Hammurabi's Code and modern criminal punishment. Being the dork that I am, I saw a program today on the History Channel on the history of punishment. The narrator condluded with something to the effect of, "Ever since the time of Hammurabi, cruelty and vengeance have dominated punishment." I take exception to this.

The generous use of the death penalty often creates the impression that the Code is vengeful. But this does not explain quite a few other provisions. For example, Code 49 states:

49. If any one take money from a merchant, and give the merchant a field tillable for corn or sesame and order him to plant corn or sesame in the field, and to harvest the crop; if the cultivator plant corn or sesame in the field, at the harvest the corn or sesame that is in the field shall belong to the owner of the field and he shall pay corn as rent, for the money he received from the merchant, and the livelihood of the cultivator shall he give to the merchant.

I've only read less than 200 pages in my contracts text and I can tell you this sounds like typical remedy for breach. Unjust profits you say, give them back. In 107 we see a similar situation.

107. If the merchant cheat the agent, in that as the latter has returned to him all that had been given him, but the merchant denies the receipt of what had been returned to him, then shall this agent convict the merchant before God and the judges, and if he still deny receiving what the agent had given him shall pay six times the sum to the agent.

But the "six times the sum" bit clearly does not sound like damages for breach. Yes I know, but this was about 4000 years ago, so the common law was not as developed if you will. There is a punitive factor in all the codes, don't get me wrong. However, these measures are more accurately described as deterrants rather than "vengeance and cruelty" based punishments. The best example of this is the eye for an eye bit.

196. If a man put out the eye of another man, his eye shall be put out.

197. If he break another man's bone, his bone shall be broken.

198. If he put out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina.

199. If he put out the eye of a man's slave, or break the bone of a man's slave, he shall pay one-half of its value.

Does this sound like vengeance and cruelty or deterrent and expectation? At the very least I mean to suggest that there is quite a bit more depth t0 the Code than the Hist. Channel implies.

Moscow on the Potomac?

Matthew Yglesias writes of:

other pieces of evidence of what one might call the creeping Putinization of American life (the Sinclair incident, the threatening letter to Rock The Vote, the specter of the top official in the House of Representatives making totally baseless charges of criminal conduct against a major financier of the political opposition [shades of Mikhail Khodorovsky], the increasing evidence that the 'terror alert' system is nothing more than a political prop, the 'torture memo' asserting that the president is above the law, the imposition of rigid discipline on the congress, the abuse of the conference committee procedure, the ability of the administration to lie to congress without penalty, the exclusion of non-supporters from Bush's public appearances, etc.)...Terrorist forces operating in and around Chechnya have done some horrible things -- I was in Moscow for the big apartment bombings -- but ultimately the most harmful thing they have done was to enable Putin to tighten his grip on power.

There's a reason why he's a professional writer and I'm not. However he forgets one key element...the incessant wearing of flag pins. Though this is not a problem that Putin suffers from, it's the general Sovietization I'm noting...see for yourself.

All C-SPAN All the Time

This past Tuesday I got to see Michael Moore speak (tell me how to think) at UCLA thanks to my former roommate (wh0 organized the whole thing). The day before, he remarked, "Dude, your favorite channel is going to show Moore's speech."

Me: "CNN?"

Him: "No, C-SPAN."

Me: "You gotta be more specific...I have every cable news channel going through my head not to mention C-SPAN and C-SPAN2. I'm not much of a fan of the House."

Anyway, being the dork that I am, I was watching C-SPAN last night, when they were showing proceedings from the Fl Supreme Court hearing on the casting of provisional ballots. The attorney arguing the case for the AFL-CIO, Jonathan Weissglass, spoke about that particular issue at the law school a few weeks ago. At the time I noted that he's a terrible speaker, and his performance in front of the Florida high court confirmed this. I just hope the justices see past that. So the moral of the story is, if you watch C-SPAN enough you just might see your fucking family reunion on there, among other things.

Toaleta Nieczynna

Great moments in history, starring Armen:

Armen walks into a men's restroom at Kerckoff Hall at UCLA with his former roommate. Roommate takes stall, Armen takes urinal. Armen notes the unusually high urinal and remarks, "How the fuck do you piss in this thing?"

Roommate: "I don't know man...try tip-toeing"

Armen: "I'm gonna go for an arch."

Roommate: "Just think of McDonalds."

Armen continues pissing...meanwhile he notices a "DO NOT FLUSH...URINAL WILL OVERFLOW" sign placed right at the handle (eye level). What does Armen do? FLUSH. What does Armen get? A nice cold spray of water from the handle area...or so I hope.

Weird Science

...because Armen and I were having this conversation just a few days ago, and I am too lazy to look up his email, I invite you all to look at this post by Brian Leiter. (Hint: Leiter doesn't seem convinced economics is very scientific.)

The Abominable Snowman

Here's why I love the United States: Torts lawsuit jury awards.

As if I needed another reason to drink, I find out from this case in NJ that I can drink myself into a stupor, walk outside and then pass out. Assuming someone has the good sense to call 911, if the cops don't find me before frostbite sets in, I stand to be about $850,000 richer after a quick jury trial, all on the taxpayer dime!

Only in America!

Cops...in Verona

This is dedicated to crim law cases that arise out of love that just was not meant to be. The following cases all deal with provocation as a defense against murder (to reduce it to manslaughter).

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"She continued to taunt him by saying, 'I never did wnat to marry you and you are a lousy fuck and you remind me of my dad' [who had apparently abused her as a child]. The barrage of insults continued with her telling Steven that she wanted a divorce, that the marriage had been a mistake and that she had never wanted to marry him. She also told him she had seen his commanding officer and filed charges against him for abuse. She then asked Steven, "What are you going to do?" Receiving no response, she continued her verbal attack...after pausing for a moment, Joyce [again] asked what Steven was going to do. What he did was lunge at her with a kitchen knife he had hidden behind the pillow and stab her 19 times." -- Judge Cole, in Girouard v. State, 321 Md. 532 (Md. Ct. of App., 1991).

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"Maher offered evidence to show an adulterous intercourse between his wife and Hunt less than an hour before the assault. His evidence was that he followed his wife and Hunt as they entered the woods together, that when they left a half hour later he followed Hunt to the saloon, that just before he entered the saloon a friend told him that Hunt and his wife had had intercourse in the woods the day before." -- Justice Christiancy, in Maher v. People, 10 Mich. 212 (1862).

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"Thereafter, on one occasion, he broke into Miss Lo Consolo's apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed and lay for a time in Miss Lo Consolo's bed...Defendant's final visit ot his victim's apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo's rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to 'make sure she was dead.'" -- Justice Jasen, in People v. Casassa, 49 N.Y.2d 668 (1980).

Don't Mess With Bill

Bill O'Reilly (Oh Really?) commented today that a Colorado ballot initiative to split its electoral votes would be ruled unconstitutional. This is a bit striking. There are really two places where the US Constitution discusses election of President.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. -- US Const. Art. II, Sec. 1, cl. 2.

The second part is the 12th Amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed...

Maybe I'm missing something, but in all likelihood this is just another example of Oh Really's big head telling him to say something that's just wrong, i.e. if electors are to meet and vote by ballot for President, and if the legislature of a state has final authority on choosing electors, how is it possible that a proportional system would be ruled unconstitutional? The only issue, and this appears in the article, is the fairness of applying the system retroactively to the 2004 election. That's not a problem with the system but when it can take effect, which means it cannot be stricken down as unconstitutional.

Against All Odds (CA Prop 68 and 70) Pt. 1

As I noted in the Weekend Review below I've taken a bit of an interest in Indian Gaming, especially in light of two confusing propositions on the ballot here in CA.

The area is a difficult one and it has been the topic of many law review articles and notes. I'd particularly point to (Lent) Note, Are States Beating the House?: The Validity of Tribal-State Revenue Sharing Under the Indian Gaming Regulatory Act, 91 Geo. L.J. 451. The Act discussed in the note, the IGRA, was passed in 1988 by Congress in response to California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). The SCOTUS, in that case, held that Indians can have gaming on their lands without much state interference. (This concept is popping up in a lot of the political ads for prop. 68, asking viewers why Indians don't pay their fair share. Most people, unfortunately, do not understand the concept of sovereignty. Indians are sovereign nations, with some limitations, hence the SCOTUS ruling). Congress passed IGRA to allow gambling if it did not violate fed laws and was not against specific state provisions. In 1998, CA voters amended the state constitution to allow Nevada-style gaming and to mandate the governor to negotiate compacts with Indian tribes. Then Gov. Davis negotiated 20-year compacts which had some revenue sharing with local governments for infrastructure costs, etc. but not much else. Voters ratified the compacts in 2000.

Great Moments in Lawyering

Supposedly these are transcripts from various court reporters (from a book entitled "Disorder in the Court"). I found them amusing. Enjoy!

Q: Are you sexually active?
A: No, I just lie there.

Q: What is your date of birth?
A: July 15.
Q: What year?
A: Every year.

Q: What gear were you in at the moment of the impact?
A: Gucci sweats and Reeboks.

Q: This myasthenia gravis, does it affect your memory at all?
A: Yes.
Q: And in what ways does it affect your memory?
A: I forget.
Q: You forget? Can you give us an example of something that you've forgotten?

Q: How old is your son, the one living with you?
A: Thirty-eight or thirty-five, I can't remember which.
Q: How long has he lived with you?
A: Forty-five years.

Q: What was the first thing your husband said to you when he woke up that morning?
A: He said, "Where am I, Cathy?"
Q: And why did that upset you?
A: My name is Susan.

Q: Do you know if your daughter has ever been involved in voodoo or the occult?
A: We both do.
Q: Voodoo?
A: We do.
Q: You do?
A: Yes, voodoo.

Q: Now doctor, isn't it true that when a person dies in his sleep, he does know about it until the next morning?
A: Did you actually pass the bar exam?

Q: The youngest son, the twenty-year-old, how old is he?

Q: Were you present when your picture was taken?

Q: So the date of conception of the baby was August 8th?
A: Yes.
Q: And what were you doing at that time?

Q: She had three children, right?
A: Yes.
Q: How many were boys?
A: None.
Q: Were there any girls?

Q: How was your first marriage terminated?
A: By death.
Q: And by whose death was it terminated?

Q: Can you describe the individual?
A: He was about medium height and had a beard.
Q: Was this a male, or a female?

Q: Is your appearance here this morning pursuant to a deposition which I sent to your attorney?
A: No, this is how I dress when I go to work.

Q: Doctor, how many autopsies have you performed on dead people?
A: All my autopsies are performed on dead people.

Q: ALL your responses MUST be oral, OK?
A: Yes.
Q: What school did you go to?
A: Oral.

Q: Do you recall the time that you examined the body?
A: The autopsy started around 8:30 p.m.
Q: And Mr. Dennington was dead at the time?
A: No, he was sitting on the table wondering why I was doing an autopsy.

Q: Are you qualified to give a urine sample?

Q: Doctor, before you performed the autopsy, did you check for a pulse?
A: No.
Q: Did you check for blood pressure?
A: No.
Q: Did you check for breathing?
A: No.
Q: So, then it is possible that the patient was alive when you began the autopsy?
A: No.
Q: How can you be so sure, Doctor? A:
Because his brain was sitting on my desk in a jar.
Q: But could the patient have still been alive, nevertheless?
A: Yes, it is possible that he could have been alive, practicing law somewhere.

Weekend Update

News headlines from SF Chronicle that have caught my eye.

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The SCOTUS may honor this blog during the October 04 term by taking on Nuts-and-Bolts Cases.

There are no cases on abortion, gay rights or affirmative action on the U.S. Supreme Court's docket for the term that starts Monday. There are none on school vouchers or the Pledge of Allegiance, and none on the clash between civil liberties and the government's authority to search, monitor or imprison suspected terrorists.

Rather than the spectacular cases that have marked the court's last few terms, and those that may lie a year or two ahead, the 2004-05 term seems likely to be devoted to nuts-and-bolts issues of government and society with which the court is most familiar: crime and punishment; federal versus state authority, in the context of California's medical marijuana law; economic regulation; and juveniles on death row.

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Boalt is looking to replace the aging nuts and bolts by bolting ahead in its capital drive unveiled on Saturday. Dean Chris Edley's comments can be found here.

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Indian tribes operating casinos in CA may be circumventing their 1999 gaming compacts through a clever loophole. This is an area that I've taken some interest in given two propositions on the ballot for the upcoming election. I plan to write more on the subject in short order.

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Speaking of elections sparking Armageddon, Daniel Handler writes this excellent (with respect to quality of writing as well as content) review of Phillip Roth's The Plot Against America. I believe it was on Wednesday that Tom mentioned this book when I remarked something to the effect of how nice things would have been if the South actually had seceded rather than inhibiting progress (obviously tongue in cheek...I don't want to hear shit from you abolitionists). In the book, Charles Lindbergh is elected president as an isolationist instead of FDR. Should be an interesting read...

The Baghdadi Candidate

The NY Times reports the the following (registration required). It reads in part:

BAGHDAD, Iraq, Oct. 2 - The Shiite cleric Moktada al-Sadr has begun laying the groundwork to enter Iraq's nascent democratic process, telling Iraqi leaders that he is planning to disband his militia and possibly field candidates for office .

The only thing funnier than this is if as tonight's SNL parody of the debate showed, Bush put Saddam in charge to take control of the country.