Hardest Boalt to (Un)screw

In response to Ann's not so veiled dare, I will now offer my own top 10 list, which will be generally conforming to the categories already established. As a well-identified blogger, there will be instances where you might have to assume the exact opposite of what I say. I hope those will be painfully obvious.

1. To borrow an answer a friend gave to a purity test question, "Do you mock religion?" I say, "With a vengeance." Or to quote a former co-worker, "You and a superstitious woman...oil and water" (referring to g/f of 2.5 years...go figure).

2. To the best of my knowledge, I have not broken any laws of the United States or any of the various states thereof. I always drive the posted speed limit. I always double and triple check my blind spot, even when not changing lanes. My car DOES NOT HAVE illegal cracks in the windshield on BOTH the passenger and driver sides. But in previous lives I've carried out mob hits.

3. Biological parents are alive and kicking, ususally when we try to haul them off to the old folks' home. [kidding...they don't kick.] My younger brother and I suspect impropriety since we look nothing alike. However, upon the attestation of EVERY SINGLE PERSON who has met both us, we grudgingly admit that we have similar PERSONALITIES. Neither one of us is still willing to concede any physicial similarities, quite possibly proving beyond doubt we really are brothers.

4. I mock Randheads with a vengeance.

5. I voted for Bush in 2000. It's true. I even managed to dig up an old e-mail I sent via "reply-all" when a very good friend of mine from HS and UCLA forwarded crap alleging impropriety in FL and in the election in general. (Impro-what? Yeah, I know, my thoughts exactly). Anyway, going over the e-mail I guess I was a jackass to boot. Huh, you want to read what I wrote? But I don't have the original and it would unfairly cast me in bad light to just show my response (without the obligatory caveat that this was a week before my FIRST EVER COLLEGE FINALS). Ok fine, ask and ye shall receive.

6. I have no shame. No, really. Also, I can't swim. And I love airplanes.

7. I fear dancing. I have nightmares about having to dance. But I still have no shame.

8. The closest thing I have to a fettish is the midget in the closet. [Note if you are a law enforcement officer or a hiring partner, please see #2.]

9. I have vowed to forever love people for the following reasons:
-- Buying breakfast
-- Buying lunch
-- Buying dinner
-- Buying brunch
-- Buying Linner (I still think Dunch has a better ring to it)
-- Concealing shameful information about me from the general public
-- Lying, cheating, stealing (I'm hoping these favors will be returned in my future career)
-- Caring, giving unconditional love and affection
-- AAA guy unlocking car door.
-- AAA guy unlocking car door 5x (they had to charge me for the last couple since I was over my annual limit)
-- Anyone who's discovered the truth behind #8 but has hinted that they'd remain silent if the "price is right."

10. Oooh a sexual partners question. On the one hand there's the truth. On the other image/persona.

Alternate Realities

Liveblogging the CivPro reading. Brought to you by the Federal Rules of Civil Procedure, Rule 8(e)(2) and Rule 11.

5:40 pm.
Case at hand: McCormick v. Kopmann
Illinous Court of Appeals, Third District. 1959

5:41. First head-scratcher. The defendant spells his name Lorence [sic] (utilized, and incorrectly, just for you, Armen) Kopmann. Odd spelling. I suppose it's the old law professor maxim at work: odd spellings beget odd parties beget odd cases beget odd decisions begets good casebook entries.

5:46. Damn that first entry took a long time to correctly compose. Better get a move on or I'll be on blogger all night.

5:47. Back to the facts. McCormick was killed while driving down Main Street in Podunk (names have been changed to protect the innocent), Illinois. The car that collided with McCormick's was driven by Kopmann.

5:48. Awesome case already. It includes an administatrix, which just sounds dirty, let's face it. Anyways, McCormick's estate pleads (among other things) two counts in the alternative. In the first count, the estate alleges that Kopmann strayed over the center line and struck McCormick, who was exercising due care, head on. In the fourth count (counts 2 & 3 aren't at issue), the estate tries to sue a third party, the Huls, claiming that McCormick was actually driving drunk because the Huls plied him with too much booze. So, according either Kopmann was negligent, or, in the alternative, McCormick was drunk because the Huls were negligent. It's win-win for McCormick's peeps. Isn't the law grand?

5:56. Motions filed by various Ds. Denied. I can't be bothered to recount the details. Except the clever turns of phrase, like Kopmann's lawyer's characterization of allegations of Count I and IV as "fatally repugnant". Not merely repugnant. Fatally repugnant.

6:00. Conflicting testimony. McCormick intorduces "proof" that he was in his lane the whole time. Kopmann introduces testimony to the contrary. He said, she said... Blah, blah, blah... Best conflicting testimony: Plaintiff's witness says McCormick had "one or two" bottles of beer" at Mary Huls' tavern. Mary Huls herself says McCormick had one bottle. "Several witnesses testified that McCormick had no alcholic beverages in John and Mary Huls' tavern." First observation: Yeah, like a couple of guys in a bar are going to be keeping track of how much others are drinking. Second observation: How could Huls' lawyers think these witnesses were helpful, contradicting an already inconsistent factual record?

6:03. Trial Ct. Verdict. Sorry Mr. Kopmann. Even if McCormick was boozing, you crossed the center line. Please pay $15,500. Huls get off scot-free.

6:04. Predictably, Kopmann appealed. Damn. If he didn't, it would have been, like, the greatest CivPro reading day ever! A wacky and entertaining set of facts, and little actual procedure to discuss.

6:05. Lots of law. Boring. Court's first conclusion: counts 1 and 4 are mutually exclusive, McCormick can't recover damages on both counts. But he can still plead both. Sorry Kopmann. Things aren't looking good for you so far.

6:07. Ahh. The Rule. How satisfying: order amidst the chaos. Apparently, Illinois law, based on FRCP Rule 8(e)(2), "expressly permits a plaintiff to plead inconsistent counts in the alternative, where he is genuinely in doubt as to what the facts are and what the evidence will show." More on the latter part of the preceding sentence later, I imagine. Policy justification for pleading in the alternative: settle controversies most justly in a single action, as opposed to several individual actions.

6:17. Phone call!

6:30. Ahh, the unassailable logic of the judiciary. According to the court, McCormack's best move in the case was dying. If he had lived, he could not have plead both counts(because he would not likely have been "genuinely in doubt" as to the facts). But he died. So his estate can float however many cockamanie versions they want. Just win, baby. Just win.

6:45. Losing steam. Can't be bothered to blog further. Court thinks that plaintiffs should be allowed to plead in the alternative, otherwise their whole case may be dismissed and justice would be denied. Never mind the fact that in this particular case, the plaintiff plead two wholly contradictory alternatives, thereby boosting the odds that it would win no matter how the jury understood the facts. Moreover, the plaintiff never actually tried to prove all of the elements for Count IV against the tavernkeepers. So this claim seems a bit frivolous, or at best a psychological ploy meant to maximize a jury's opportunity to compensate the plaintiff. You can see McCormick's lawyer up there now: "Ladies and Gentlemen of the jury! Mr. McCormick was killed in an accident. Someone is at fault, and that someone should pay a price -- the cost of raising McCormick's children, for example -- for the wrong that has been done! Now, if you think Mr. Kopmann did it, find for us on Count I. But if you buy the notion that Mr. McCormick may have had too much to drink, then find for us on Count IV. Thank you and God bless."

6:55. In the notes, we learn that at common law, plaintiffs could not plead inconsistent allegations. This apparently "put the plaintiff in a very difficult situation," as she could only plead one of two or more equally plausible claims, leaving the defendant an easy defense: another equally plausible claim. Wah. Wah. Wah. I like the common law rule. I know -- in fact, our whole torts class now knows -- the Emersonian lament that "foolish consistency is the hobgoblin of simple minds." But I happen to feel that a plaintiff should have to be reasonably sure that the person he drags into court has actually wronged him. If he's not sure, he'll should just have to do more pre-trial investigation.

Oh well, this has been an interesting exercise. Not as fun, or funny, as I'd hoped. Thanks for reading, if you've read this far, and don't worry: I won't try this again.

Hardest Nut to Crack?

Quite a few people (I came across it at dispositive) are doing "100 Things About Me." I have no idea who these people are and I found the reading enjoyable. I invite my fellow bloggers (and anonymous contributors as well) to something more manageable -- a Top Ten of Nuts & Boalts.

[I should add that I was motivated by an earlier suggestion that we don't know much about our fellow classmates.]

Here's mine (in no particular order).
1. Religion is the most important thing in my life.
2. The worst crime I've committed could have put me away for life (with parole) if I had been an adult at the time.
3. I don't know any of my biological relatives. And it is not possible for me to be a biological parent. This is liberating.
4. I was once a Randian (Randroid).
5. I was once a Communist.
6. I don't really understand embarrassment.
7. I fear having bad breath.
8. The closest thing I have to a fetish is lipstick.
9. I have only said "I love you" to three people.
10. There is only one person I have ever had sex with.

Oh, What A Beautiful Morning

From CNN:

"Further north in the Kurdistan town of Salamanca, CNN's Nic Robertson reported seeing a 90-year-old woman being taken to a booth in a wheelbarrow. Others came on crutches to cast their ballot.

In the southern city of Basra, ITN's Juliet Bremner reported that turnout was almost 90 percent. She said voting was peaceful and orderly with elated Shias -- oppressed for decades under Saddam -- "determined to cast their votes in their desire for freedom, peace and food.""

What a beautiful thing to read on a Sunday. And I am hopeful. 25 dead? Is that all the insurgents could muster? There's no end to the work left to do, but at least we're out of the gate.

What Goes Around . . .

I have recently been hit over the head by the amount of gossip at Boalt. I was just at a social event at which the Face Book came out and anyone not in the room was on the chopping block -- if you are a 1L and you weren't there, trust me when I tell you that your name came up and it wasn't pleasant. (I officially "no comment"ed in reponse to requests for dirt on my mod-mates.) And then today one of my mod-mates cornered me to dish on another mod-mate and actually let me in on the secret that other people in the mod think that I might actually be friends with a certain someone.

The substance of the gossip is not the trite"who hooked up with whom." Instead, people are amused to discuss why this person raises his/her hand so often in class, why this person pronounces his/her name that way (are we supposed to change the pronunciation of our names to fit in??!), or why this person is compelled to ask others to be quiet during class. Are people so self-involved that they can't appreciate differences in personalities of their classmates? Does anyone have to earn the right to receive tolerance and respect?

To illustrate how ridiculous this is, let me give an example. At the above-mentioned gossip-fest, it was asked why a certain 1L always felt compelled to comment on the rape cases in their criminal law class. Unknown to everyone else, that person was raped for the first time before the age of 5, was abused by a number of step-parents, was forcibly raped as a teen, and was a victim of domestic abuse as an adult. I think that person has earned the right to comment on rape cases. And other people's failure to fathom the complexity of other people's lives makes them ask stupid questions like "why does that person raise his/her hand in class?"

I beg everyone to consider that they don't know crap about other people's lives and have just a little more respect for personality differences that might have resulted. Ask yourself, "might there be a set of facts that I don't know about that might explain (if not justify) that person's behavior?" If you think I'm being childish about all the meanies out there, then let me comfort you: it is highly likely that someone somewhere is probably trashing you right now.

Memories

Slate's Dahlia Lithwick has this essay on the issue of repressed memories. (Hat tip, Bashman).

She covers most of the pertinent stuff very well (as is usually the case), including the (UCLA alumna) Elizabeth Loftus' study creating false memories in younger siblings. But I just want to add that the debate is basically between research psychologists and clinicians. Both swear by their work. How dare a research psychologist tell a clinician that the hundreds of clients he has are lying? Similarly, how the hell can you trust anything gathered by someone whose goal is to make patients feel they have issues that they are resolving? You get the idea. Like many things, I think the answer is somewhere in between and I actually think juries should be instructed as such. Specifically they should be told:

"Psychology research indicates that people can believe to be true what is actually false. They do not think they are lying nor are they trying to deceive. Simply their memory of an event is altered or created. There is also evidence that people repress memories of traumatic events as a defense mechanism. In weighing evidence of repressed memories, please consider such factors as (1) the method of gathering the repressed memory, (2) the credentials of experts from each side, (3) and the likelihood that the memories do (not) represent fact."

I have a bit of a trouble with this last one, but I think it is necessary to draw the jury's attention to other evidence produced in the case. In almost any eyewitness case, when there is corroborating evidence, the accuracy of the witness is significantly higher. Similar factors should apply here. I think.

What is quite possibly the best blogging idea ever?

Why doesn't, or more accurately does anyone liveblog Jeopardy? There are so many things going on in each episode. Players choking, Trebec being an ass when a wrong answer is given, wit or failed wit in category names, etc. I've been tempted to do this, but it's often the case that I'm napping way into the second Simpsons episode of the night, which of course leads me to another brilliant idea...liveblogging the Simpsons.

Terrorism, I can't write.

In response to my discussion of the Metrolink accident outside LA and the murder charges, Phil Carter e-mails me the following:

Yes, but could you characterize this incident as an act of domestic terrorism?

What are the arguments for/against?

I will tell you that it was initially seen as a potential act of terrorism by local authorities. That was later amended when they caught the guy. But what if it turns out he had a political purpose in mind?

In truth this is a loaded question, not unlike the ones he asked our class a year ago when I was still an undergrad and he a law student. But to the matter at hand, I think it's best to go from specific to broad. The best place to begin are the Federal statutes. Specifically, 18 U.S.C. Sec. 2332(b) defines terrorism in sub (g)(5) as:

the term “Federal crime of terrorism” means an offense that—

(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and

(B) is a violation of—

The statute then lists all the different crimes can potentially qualify as a terroist act. Suffice it to say, derailing a train qualifies, since it constitutes, "wrecking trains" within 18 U.S.C. 1992. The key of course is the "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." Like many crimes, including the topic of my original discussion, murder, intent plays the key role in defining terrorism. Did you intend to kill all pedestrians on the road when you got behind the wheel of a car after downing a bottle of Jameson? You get the idea. Of course Phil wouldn't ask me a question that had such easy answers.

The problem with using intent with respect to terrorism is the very distinct possibility of never determining anyone's intent. And this is what his e-mail (I think) hints at by describing the initial reaction when people did not know what caused the derailment. What if the car had just been left on the tracks? The definition of terrorism mentioned above is for the purposes of CRIMINAL PROCEEDINGS. What I mean by that is that the definition only matters once someone is arrested and charged with a crime. If all that we had was a train wreck with 11 dead, would it matter all that much what the purpose of the actor was? Would we (the public at large, the government officials, the media, etc.) de facto consider it domestic (or international) terrorism? The answer is yes. I'm not in LA so I was not privy to initial news reports, but judging from Phil's account, it sounds like more than one person jumped the gun to assume it might be an act of terror. If we continue with my hypo of the abandoned car, I think the lack of suspects or evidence to the contrary would only fuel this suspicion. I imagine pundits saying things like, "This is clearly the work of a well-financed, well-trained organization that knew exactly how to hit us and destroy all the evidence." Of course this ignores the scores of other possible explanations as well as Occam's Razor.

The underlying trouble I have is with a crime of terrorism existing in and of itself. Currently no such thing exists in Federal law, but the rhetoric in the last 10 years at least has seen a dramatic shift. When I was quite young, I remember the America's Most Wanted story on the Unabomber. The discussion was much more focused on the crime (e.g. how the bombs were made and how they were shipped) and the harm it caused, rather than the political agenda behind it. Does anyone really remember what his beef was and why he targetted his victims? (in a specific sense?) Compare that to anything post-9/11. Attacks against our military in a country we invaded are called acts of terror. This is essentially a long way of saying that we are gradually perceiving terrorism as an act in and of itself independent of the underlying crime. In a sense, if the Metrolink guy really did have an international anti-american imperialism agenda, we'd almost think the motivation behind the derailment more of a risk than the actual derailment. (Typical thoughts would be: "Well FORTUNATELY, only 11 people died, but this could just be a preview of things to come. There's no telling what kind of WMD's they may be trying to get..." (dum dum dum).)

Therefore, I ask, should someone receive X punishment for terrorism (however defined) INDEPENDENT of the means and the resulting harms? E.g. Derail a train and kill eleven? Death penalty. Point a laser at a plane and have ties to Al Qaeda? Death penalty. If we take a criminal law approach, I can't see any justification. But it's rare for a legislative body to alter criminal definitions based on the philosophical discussions of punishment. More accurately this is a political question and I cannot tell you how it will be settled.

What I can tell you is that motivation is the key factor. Phil asked me to compare this to the LAX shooting at the El Al counter. It is worth it to look at the contrasting reactions from the U.S. authorities (including Mayor Hahn) and the Israelis. And that I think is the key. The shooter did not have any intent of harming the U.S. government and no organizational ties were found. Rather it appears he had a personal hatred of Israel and Jews. Naturally, to the Israelis this is a classic case of terrorism. To us, it's another part of the tale of the Hatfields and McCoys. Are certain acts (shooting at a public place, especially airports) automatically worthy of being classified as terrorism regardless of intent? What about mob hits carried out to send a message to a rival mob? Cf abortion clinic bombings.

Carter asked our class to work in groups to draft definitions of terrorism as if we were the UN or Congress or something along those lines. I remember that we didn't really get anywhere. I'm not so sure that Iv'e done any better now. I just know that it will be quite ironic if the Metrolink guy is placed on suicide watch once sentenced to death row in San Quentin.

102 Posts on the Blog

and counting since Blogger last updated post counts...or anything else for that matter. I suspect humans will evolve gills before we see any changes.

Murder, I Wrote

Because of the distraction that is wireless in Room 140, I was reading the news about the Metrolink derailment in Glendale, CA. The relevant part of what took place is this:

At least 10 people were killed and nearly 200 injured on Wednesday when two Los Angeles commuter trains collided after one struck an automobile left on the tracks in what authorities called an aborted suicide attempt by a "deranged" man.

Police and fire officials said the man slashed his wrists and stabbed himself in the chest shortly before parking his Jeep Cherokee on the tracks. But he jumped clear at the last moment and watched as the two high-speed trains smashed together and derailed in a fiery wreck.

The man was identified by police as Juan Manuel Alvarez, 25. He was found wandering the scene after the predawn accident, muttering: "I'm sorry, I'm sorry," according to a local television report. Police said the man, who was uninjured in the crash, was arrested and would be charged with at least 10 counts of murder. (From REUTERS, via Yahoo, also see this AP/Yahoo Video)

A friend of mine actually remembered a discussion I had with him a while back and inquired about this case. At the time I did not know that they planned to file murder charges. I'm no expert on CA law, but from whatever little I remember from Crim Law, I think the charges are warranted. (My initial answer was that the DA might have some problems, and while they still might, I explain below why those are relatively minor).

There is no question of cause here. But for Alvarez parking the car on the tracks, the 10 would not have died. I don't see any issues with respect to proximate cause. There were no intervening acts and the derailment was not unforeseeable. Compare these to a negligent ambulance driver carrying a shooting victim to the hospital but on the way crashing into a tree and killing the victim or a two police helicopters crashing while following a high speed pursuit. In the first the original shooter is not guilty of murder and in the second the pursued is likewise not guilty of murder (People v. Acosta, Cal. Ct. App. 1991).

The only challenge I can see is against the requirement of "malice aforethought" for murder. This is a term of art and especially in Cal it is not taken to mean that you actually intended to kill. (Sidenote: in Ancient Athens, the element of intent always referred to with respect to act and not outcome, i.e. whether you intended to punch someone instead of intending to kill them.) Cal. Pen. C. Sec. 188 defines this element:

"[M]alice may be express or implied. It is expressed when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an ABANDONED AND MALIGNANT HEART."

The slight problem that I foresee for the DA is proving the malignant part. Abandoned is easy enough, he tried to kill himself. But malignant might take some convincing. He apologized profusely once he saw the result. This may cast some doubt. Nevertheless, he intended to crash a train. That in and of itself can show a malignant heart. And frankly when 10 people died, I don't see a jury or any state judge who stands for reelection once ever eon to give him any leeway.

This is a relatively long post, but I thought I'd bring together the three things I remember from Crim...which really was not all that bad.

I'm [Sic] of it all

I've been bothered by the excessive use of [sic] by those in law for quite some time now. [Webster broadly defines sic as, "intentionally so written -- used after a printed word or passage to indicate that it is intended exactly as printed or to indicate that it exactly reproduces an original."] In reality, the damn thing appears every time someone catches a grammatical or spelling error in a quote to make sure the reader doesn't attribute the mistake to him or her. Example from Civ Pro "casebook," "to any person when they [sic] are..." Alright, I get it, grammatical mistake of mixing singular and plural (person and they), but the author is quoting a statute. What are the odds that the statute actually says he, she, or he or she instead of "they?" Zero, zilch, nil. It doesn't take a genius to figure out that you are in fact, reproducing the statute as it is written with the mistake in it. So at least in these cases I see no conceivable benefit to the reader from using [sic] other than pointing out the original error for all to see. Worth it? I can not [sic] agree.

For pure entertainment, please see Common English Errors.

Go, Iraq, Go!

If I could have one late Christmas present, it would be for my rampant cynicism to be dissipated by a great election. Articulating the point well, my boy Chris Hitch.

I also felt compelled to post this since I don't see enough cheerleading. While I may not have agreed with showing up in Iraq in the first place, now that we're there, Go, Iraq, Go!

Gimme a V! V! Gimme a O! O! GImme a T! T! Gimme a E! E!

What's that spell, VOTE!!!

(more to come as the election gets closer)

Supersize My Claim

[Background: We are currently in Week 3 of Civ Pro, as such we're scratching the surface of pleadings. Specifically, we're asking how specific a pleading has to be to state a claim.]

In light of that, our "casebook" (which is in multi-volume reader form pending publication of the 9th edition) cites Pelman v. McDonalds as an example of a case that's dismissed for insufficiently stating a claim (2003 U.S. Dist. LEXIS 15202). Well it turns out the Second Circuit disagrees (hat tip, Bashman). They held that the pleading sufficiently states a claim under NY law. There is a nice, but short, discussion of the relevant Fed. R. Civ. P.

Below are my reflections on this in an effort to make this seemingly perplexing ruling understandable to anyone who doesn't know or give a crap about the Federal Rules of Civil Procedure.

Initially when this case was first filed, it gathered a lot of news coverage because of the social/political implications raised. My gut reaction was that it should be dismissed, therefore the dismissal did not strike me as anything unique. However, that was under the assumption that the plaintiffs' claim was that MickeyD's caused their obesity. The relevant NY state law gives individuals a cause of action if they are harmed as a result of deception by a business. The difference is the point at issue between the 2nd Circuit and the District Court. Fascinating how much you learn in just a semester of law school.

Anywho, the whole idea of the Federal Rules is to make claims really simple so that they simply serve as a notice to the defendants. This claim failed to show or plead causation, but the 2d Circuit's ruling basically affirms a NY state law and SCOTUS rulings that causation, actual harm, and things like that are really for the discovery part of a lawsuit rather than the pleading stage. Again, this is my attempt to explain why I think the Appeals Court actually got it right in reinstating a claim.

A Little Leeway

Just heard a rumor that the youngest person in the mod AmJur'd Contracts. Awesome. Truly awesome.

Grades of Wrath

So grades are now officially out. My thoughts.

In related news, I bring you bathroom graffiti from the bathroom of the local coffee shop below the graduate student housing (Manville).

***

"Bush is the devil."

(In different handwriting just below) "An agent of the Devil. And so are the 51% who voted for him."

"Reach down! You've got Bush by the balls."

"While we're at it, fuck NAMBLA."

[Drawing of TV set] "Idiot box!" (written inside).

"A closed mouth gathers no foot."

***

Said in a conversation:

"When you sit on the front of the bus and look back, it's just...deformed people, and I don't mean this in a physical sense." -- Anonymous.

More Moore

We're reading Moore v. Regents, 51 Cal. 3d 120 (1990) in Property. The opinion, the concurrences, and the dissents all infuriate me. Recognizing a right of property in one's tissues does not create a market. In fact, in this case, the market already existed without the recognized right. And allowing someone to sell their tissues to the highest bidder cannot possibly be a greater debasement than forcing someone (I consider the "life saving procedure" or "no life saving procedure" choice to have some force behind it) to give away their valuable tissues for free so that someone else can sell them to the highest bidder. Our communist of an instructor better get this one right. I digress.

With the recent Roe anniversary, abortion is in the air. As reported in the Denver Post, a hospital has been giving the crematory remains of aborted fetuses to a Catholic Church which then buries them with full services. Abortion rights group are all enraged. This is just more Moore. Where were they the first time around?

Everything's Coming Up Armen

Today, for the first time since 9/11, the WTC episode of the Simpsons aired in syndication. I don't know if this is because UPN shows The Simpsons syndicated in the Bay Area or what, but I know that Fox had pulled that episode. I always thought it was a shame because it really is a great episode that has a lot of hat tips to the city. Now if THAT wasn't enough, the second episode of the day was the Armin Tamzarian fiasco (note, in the episode the name is actually pronounced Armen). This one is generally considered one of the crappiest episodes but I remain partial for obvious reasons.

Armin: My mind is made up!  I'm not coming back!  And that's final.

Edna:  Oh, Seymour.

Armin: And I'm not Seymour.  My name is Armin.  This is Armin's apartment,

      Armin's liquor, Armin's copy of "Swank", Armin's frozen peas.

Homer: Can I see your copy of "Swank", Armin?

Armin: Yes, you can.  This is Armin's life, and maybe it's not perfect, but

      at least I'm back where I belong.  I was born a no-goodnik, and I'll

      die a no-goodnik.

Bonus points if anyone recognizes the episode that also references the title of this post.

The Supremes

Note to AP: The third justice from right is NOT Stephen Breyer. Related to this, "And we're not that well known...you may be. Out of the 10 times that someone asked me if I was on the Supreme Court, 9 of them thought that I was Justice Souter." -- Justice Stephen Breyer, in Influence of Foreign Courts in the US, Talk with Justice Scalia and Justice Breyer.

UPDATE on the Supremes without the lead: Here's a pic of all eight at today's inauguration. Notice anything about the way they're sitting?



Justice John Paul Stevens -- Appointed 1975
Justice Sandra Day O'Connor -- Appointed 1981
Justice Antonin Scalia -- Appointed 1986
Justice Anthony Kennedy -- Appointed 1988
Justice David Souter -- Appointed 1990
Justice Clarence Thomas -- Appointed 1991
Justice Ruth Bader Ginsburg --Appointed 1993
Justice Stephen Breyer -- Appointed 1994

Reminds me of field trips during elementary school when we'd sit next to the person we sat next to in class.

Spoken like a true Bushman II

I'm chomping at the bits...Eugene Volokh has again taken aim at Slate's Bushism of the day, which is:

"I want to appreciate those of you who wear our nation's uniform for your sacrifice."—Jacksonville, Fla., Jan. 14, 2005

Then Volokh goes through the typical inquisition of (in his view) implausible reasons why anyone could find this funny and the most logical one he comes up with is that Bush should have said "thank" instead of "appreciate." Umm, getting warmer, warmer, WARMER!!! The REASON why thank is better is because he "WANTS to appreciate." I want a million dollars. Do I have a million dollars? Nope. I'd appreciate it if someone gave me a million dollars, invaded 2 countries, and risked life and limb for my bumbling. No wait, that's a bad example because if someone actually did those things then I actually WOULD appreciate their efforts, not simply wish to appreciate. Pity, we're inaugurating a Commander-in-Chief whose Christmas list barely includes appreciating those in the military. Slate 3, Volokh 0.

P.S. I think the full context that Volokh provides for the quote makes the gaffe all the worse. I'm giving Slate an extra 0.5 points for making Bush look better than required.

Slate 3.5, Volokh 0.

Every Survivor Needs to Hatch a Plan B

Richard Hatch, the winner of the first ever "Survivor," that wonderful idea of mixing reality TV with competition that's given us such gems as "Who Wants to Marry Joe Millionaire," is ready to plead guilty to two counts of tax evasion for failing to report the $1.01 million winnings. For a while I doubted whether Hatch really was the best person to win the cash prize, but now I know that he was. Anyone willing to play chicken with the IRS for the sake of keeping his entire WINNINGS (note how this differes from EARNED income) truly deserves to be dubbed, Survivor.

Any airline pilot trying to do the same deserves a one-way ticket to a mental health facility.

WWVWD?

As in, What Would Vanna White Do? (link may require CalNet ID, or just look up the case on Lexis 989 F.2d 1512), the question that is apparently on the mind of Nelson Mandela as he tries to reclaim control over his name/likeness under South Africa's somewhat-less-generous-than-California's right of publicity laws. The answer, of course, is sue.

Astounding.

I continue to be amazed by people's willingness and pride in mathematical ignorance.

It is simply unacceptable.

(yes, this was posted in class)

- An Aghast Tom

Beethoven's Fifth (Sense)

[Note: Cross-posted at De Novo]

This is not law related per se, but I'll try to tie it in below. The LA Times has the following story on students taking American Sign Language (ASL) to satisfy foreign language requirements. (For you Lexis afficionados, Stuart Silverstein, "Wary of Taking Spanish or French? Raise Hands" Jan. 18, 2005).

Apparently, while some schools enthusastically offer credits toward foreign language requirements for those who take ASL, others are not so eager. Silverstein writes, "Although the list of colleges approving ASL for foreign-language entrance or graduation requirements keeps growing, some prominent schools, including such California campuses as USC and Pomona College, are holdouts. They contend that ASL — unlike, say, French — doesn't open a window into another country's culture." This position is refined by Boston University, College of Arts and Sciences Dean, Jeffery Henderson, who argues that the traditional approach "doesn't aim only for students to achieve a certain competence in a language but also [to learn] a language that provides access to the culture of another society. That's what's under debate, because ASL is a North American language."

For sanity's sake I will assume that U$C and Pomona do not mean to imply that if I took Kurdish or Basque they would not count as a foreign language since they don't open a window to a particular country's culture. What is a country's culture anyway? I dare anyone to tell a Barcelonian that he shares his culture with an Argentinian. [Do this at your own risk and only if you enjoy fireworks of the metaphorical sort.] Now granted, by studying ASL, you're being exposed to an American sub-culture. But I hardly think this is grounds for objecting. I think the vast majority of people who take Spanish (including your courageous author who could not tell you what the subjunctive is on penalty of death) do so for practical reasons WITHIN the United States. So the North American objection is meritless.

I think exposure to deaf (and on a larger scale, disabled) culture is a wonderful thing. [Tie-in to law school] In one of my classes there is a deaf student who must watch signers intently during lecture while morons like me play solitaire instead of paying attention. Maybe it's a moment of my conscience feeling guilty for having all 5 senses, but I certainly wish I had taken ASL instead of Spanish. At least my hands would have been put to better use than dragging and dropping the Ace of Spades.

[In the interest of full disclosure and some personal ranting, I went to North Hollywood High School in Los Angeles, home of the Highly Gifted Magnet, from which a student is quoted in the story quite laudingly. Six years ago, I wrote a letter (lexis required) to the LA Times criticising their coverage of the magnet. I guess some things just don't change. Again, nothing against the magnet and the kid quoted, but honestly, when you put the best and the brightest of LA together, yeah no shit they're going to do amazing things]

Common Tragedy

I think it is more than ironic that my internet connection was shut off by the wonderful folks at Residential Computing for exceeding the bandwidth limit while we are studying the tragedy of the commons in property law. So for the day at least, I consider myself a libertarian. The hell with common property, I want everything to be private, including bandwidth, so that I can turn around and sell it on the market for profit. (If you are a libertarian and are totally aghast that someone can butcher your tenets with such ignorance, don't bother pointing this out.) With that, I'd like to apologize for the long silence.

Anywho, while we're on the subject of property, I wanted to gripe about something I saw in our readings for Tuesday. Judge Alex Kozinski of the 9th Circuit wrote in a dissent from denial for rehearing, "Where would we be if Charles Lindbergh had an exclusive right in the concept of a heroic solo aviator? If Arthur Conan Doyle had gottena copyright in the idea of the detective story, or Albert Einstein had patented the theory of relativity?" 989 F.2d 1512, 1516 (9th Cir. 1993). I almost feel like I'm nitpicking like Eugene, but this is actually a factual error. The detective story was created by Edgar Allan Poe with his Inspector Dupin stories (my personal favorite, Murders in the Rue Morgue because "the orangutan did it.") Once again, more irony in the realm of property rights when a judge gets cute by citing an author who's famous for ripping off another.

Broken Record

Today, during the first meeting of my weekly Immigration seminar, there was a record number (7 to be precise) of mentions of "nuts and bolts." This blogger's hubris has reached new heights.

In related news, there was also a record number of dissenting views. (0)

Abe Lincoln: Almost Totally Gay!

From Andrew Sullivan at the New Republic (might require free registration) we learn that Honest Abe might not have been so upfront (with the public, anyway) about certain relationships he may have had with other men. According to one (male) friend, Lincoln's "thighs were as perfect as a human being could be". I have always been partial to his piercing gaze, but whatever...

Mamma Mia!

Poor raccoon. Feel smart for property tomorrow, and revel in the little dash of civ pro too. Can you believe? A wild animal and a due process deprivation of property claim in one case!!

(link, or for the Lexis-imparied, Bilida v. McLeod, 211 F.3d 166, 173-174 (1st Cir. 2000).)

(followed by applause for Tom and his Christmas-break honed Lexis skillz)

Spoken Like a True Bushman

Prof. Eugene (Ahab) Volokh's incessant quest to get Slate to drop their Bushism of the Day segment is getting rather annoying. Posting about it once or twice, or arguing how such things really don't do much to undo rife partisan divides are one thing, but to go to extremes to remove humor from a line is, well, not that different than what Slate is doing. That is, if Volokh's goal is to not have partisan childish namecalling, he's really not helping with his own childish remarks about why something should not be a Bushism. And so to do my fair share, every time that Volokh criticises a Bushism, I will post here why I find the statement rather humorous. Let's begin with today's.

"We need to apply 21^st-century information technology to the health care field. We need to have our medical records put on the I.T."—Collinsville, Ill., Jan. 5, 2005

Two layers of humor. (1) How can you apply IT while putting something on IT? You can't. This is the same as saying "We need to apply antique tables to the White House by putting the White House lamps on them." Hmm...sounds funny to me. Slate 1, Volokh 0. (2) You can't put ANYTHING on information technology since it doesn't physically exist to HOLD anything. You can put things on the internet, on computers, on networks...these all physically hold electronic data. IT? No. Sorry, Professor, even your own skewed definition doesn't really change the fact that our President doesn't even grasp the very basics of technology. Slate 2, Volokh 0. And this is just day 1. Keep the Bushisms rollin'.

The Only Man Who Could Ever Save Me

Was apparently NOT anyone close to the preacher. (AP via Yahoo has a report on a pastor dying while preaching to his flock about heaven).

This reminds me of a joke that the Director of the Museum of Tolerance told during an employee meeting:

A priest, a minister, and a rabbi are chatting and the priest says, "When I die, I hope that my flock will say that I was a good shephard for them and that I lived a good life." The minister says, "When I die, I hope that my congregation will say that I was a good husband and a good father, and that I lived and taught the word of God." The rabbi jumps in, "When I die, I hope they'll say, 'Look!!! He's not dead.'"

Animal House Cleaning

A few things I would like to point out...

1. I am now a regular co-blogger at De Novo. What? A standing ovation? Noooooo!!! My latest musings regarding wireless access in the classroom can be seen here.

2. I made a few changes to the site a few days back such as adding sitemeter and putting the blogroll in alphabetical order. (Sidenote: sitemeter is the most addictive substance I've yet subjected my body to, and I'm a big opiates fan.) If you have any blogs to recommend to be added to the blogroll feel free to submit them as a comment. My sole criteria is that they be entertaining to read (however defined).

3. While reading Johnson v. M'Intosh (Native Americans don't have the right to transfer land since the US government holds ultimate title for various disturbing reasons including the whole only first Europeans to discover America can have title) for Property yesterday I couldn't help but think of my favorite comedian, Eddie Izzard:

So, yeah. There was a lot of that, and we built up empires - we stole countries! That's what you do, that's how you build an empire. We stole countries with the cunning use of flags! Yeah, just sail around the world and stick a flag in.

"I claim India for Britain!"

They go, "You can't claim us, we live here! 500 million of us!"

"Do you have a flaaaaag?"

"We don't need a bloody flag! It's our country, you bastards!"

"No flag, no country, you can't have one! That's the rules that I've just made up, and I'm backing it up with this gun that was lent from the National Rifle Association."

Fafblog on Gonzales Confirmation Hearings

The indispensible Fafblog has several good entries on the Gonzales confirmation hearings, including one very funny "Gonzales v. a baked potato". The baked potato won. I've always been partial to fries, but whatever.

Paging the ACLU...

This NY Times story raises the interesting issue of police use of "DNA sweeps" in criminal investigations. Obviously, police asking people for their genetic information is always going to raise red flags among civil liberties advocates, but Dick Seed (I kid you not) goes perhaps a little far when he claims the tactic "usurps his civil rights". He is, of course, not being compelled or coerced to submit to a DNA test, and there is no indication in this case that not giving a DNA swab would cast aspersions on his innocence (though there is clearly a heightened risk of that). The biggest danger to civil liberties that I can really imagine is that police would be tempted to keep records of the submitted DNA, which down the road could lead to all sorts of abuses...

He Works Hard for His Meal Break

My classmate Josh Benson has an op/ed piece in today's SF Chronicle on the Governator's proposed rule change regarding mandatory meal breaks for employees.

In other news, my trip through the grapevine looked like this (note the crack in the windshield discussed below). I did not miss the chance to make excellent first and second impressions. Once I got the ball rolling, the rest of the trip looked like this (again note the crack).

In the Navy

Where we crash the sandy beach...



From AP via Yahoo: " In this photo released by the US Navy the attack submarine USS San Francisco (SSN 711) is escorted by two harbor tugs returns to Apra Harbor, Guam, after a five-month deployment June 4, 2004. The USS San Francisco ran aground about 350 miles south of Guam, injuring several sailors, one of them critically, the Navy said late Friday Jan. 7, 2005." (AP Photo/US Navy photo by Photographer's Mate 2nd Class Mark A. Leonesio)

[Note: I wrote this post before the sailor on USS San Francisco died as a result of injuries sustained from the accident. As I miraculously remember from torts, military activities still enjoy sovereign immunity]

I drove it through the grapvine

Well at least I hope to this morning. While as a So-Cal native I have an irrational fear of snow, I still have a rational fear of death since I'll be making the trek back to Berkeley in a 1990 Toyota Corolla with TWO separate cracks in the windshield (don't worry folks, the larger one is on the passenger side) and a wheel-base of about 16 mm (measured from plastic hubcap to plastic hubcap). So the car ought to go through those icy turns like a hot knife through butter. But if you don't hear from me anytime soon, assume that I have taken up a life of solitude in Gorman, CA trying to mimic the greatness of La Bomba (with respect to skiing that is).

The Desensitization Slippery Slope

I've been reading through Eugene Volokh's paper on slippery slope mechanisms since I found his talk to be the most insightful one I attended during my frist term at Boalt. One of the mechanisms involves society's preferences shifting in the wake of A, making B easier to attain. Reading about the Alberto Gonzales confirmation hearings, I realize just how desensitized I have become to the torture issue.

When Abu Ghraib first made news, incensed only partially described my anger. And now? I only skim the article on the hearings, and I have a hunch that the senators only are too. He will be easily approved and we will have seen that someone with a less than 100% disapproval of torture can keep moving up the power structure. The opposition is demoralized and less vigorous in its protests.

The cost of torture and supporting it (previously, your career, pension, esteem, everything) is now lower; this is also a cost-lowering slippery slope.

And this slope does appear to be quite downward and real. Is anyone even bothering to read about this anymore, let alone feel outraged? I doubt it. It's cute looking back at what I expected of 2000 (one of my little mind games on New Year's), and not retching at the reality of 2005.

Damn.

It's shaping up to be an ugly century friends.

(the Volokh article is nonetheless quite good and worth reading to cement everything said in the seminar, despite all my cynical gloom)

Open Season

So I had my first "open house" for 1Ls at a firm in my home city out east. They invited 1Ls from the area but studying at schools outside the region for a special little panel discussion/lunch with associates.

It was interesting, and frankly quite useful, to hear the hiring partner describe in fairly deep detail their selection process, and to hear young associates describe their summer experiences and how exactly they came to choose their practice areas.

But some of the day's events still struck me as a little off-kilter. For example -- I hope this will stimulate some respectful discussion in comments or on the main page -- the first two speakers, the hiring partner and the partner in charge of the firm's "diversity committee" spoke at length -- but not in depth -- about the firm's commitment to diversity. This to a room of 26 law students, of whom 23 are white (two asians and one black). Diversity may be important to the firm, and to most of us applicants it's hopefully important as well, but it wasn't terribly relevant to the audience. To be fair, the diversity committee partner emphasized the steps the firm is taking to improve quality of life for women at the firm, which was likely of more interest to the 11 women in the room.

I suppose what struck me most was not so much that the firm focused so heavily on diversity -- I don't think they should be criticized for that, though I think it was kind of a wasted effort on the particular group I was with. But it saddened me a bit to see the "raw materials" the firm had to work with. Only ONE black 1L in the room. No Latinos. Majority white males. The hiring partner asked -- in a friendly way -- if anyone in the room questioned their desire to practice law in a firm setting. Two women raised their hands. The legal profession, it seems, faces a systemic problem with diversity, and while firms and the demands of legal practice may exacerbate the problem at times, they're really already working with a stacked deck: there aren't enough minorities and women in law schools. In California, this may be less of a problem, I don't know. But in the Northeast, it's for real. I talked with the black woman in attendance after the lunch as we both exited. She said that even though her whole family was from the city, she would rather practice in DC, where she was going to school, or possibly New York or Atlanta, where she felt there was already a community of black lawyers from which she could draw support.

I don't know where this post is going exactly. I want to somehow engage the topic of diversity in law and law school without setting off a political debate over affirmative action. There is certainly a place for such a debate, but often I think it obscures as much as it illuminates in terms of lighting the way to more diverse legal community. So instead I'll shout the question into the wind (or the blogosphere, whatever): what can we do to open our legal community, to ensure that people from different backgrounds not only have the opportunity to join, but also the desire? How can we nurture the feeling in all potential lawyers that there is in fact a place for all in the law?

Smoke Gets in Your Eyes

Over the past several years I've managed to stop paying attention to health news on TV and print media because for the most part if they are not citing something in JAMA, New England Journal of Medicine, or Nature, then they are skewing the findings or drawing conclusions that should not be drawn. Here's a prime example from Reuters via Yahoo:

Secondhand Smoke Lowers Kids' Math, Reading Scores

...During the study, Yolton and her colleagues asked 4,399 kids between the ages of 6 and 16 to complete reading, math and reasoning tests. The researchers also checked their blood for cotinine, a substance created when the body breaks down nicotine, thereby serving as a marker for exposure to tobacco smoke.

Cotinine scores were typically higher in African-American kids, and in those who shared a home with at least one smoker.

The researchers found that children with more cotinine in their blood tended to score lower on the reading, math and reasoning tests. And the higher the cotinine levels, the lower were their scores, the authors note in the journal Environmental Health Perspectives.

That's a CORRELATION...not causation as the title implies. I must confess I have not looked at the study so I don't know if the authors controlled for all the possible confound variables, but I have a suspicion they did not. It's just a convenient way of getting PR for the study.

The Stewart Factor

From AP via Yahoo:

NEW YORK - CNN said goodbye to pundit Tucker Carlson on Wednesday, and with him likely the "Crossfire" program that has been the granddaddy of high-volume political debate shows on cable television.

CNN will probably fold "Crossfire" into its other programming, perhaps as an occasional segment on the daytime show "Inside Politics," said Jonathan Klein, who was appointed in late November as chief executive of CNN's U.S. network. Klein on Wednesday told Carlson, one of the four "Crossfire" hosts, that CNN would not be offering him a new contract.

Game, set, match...Jon Stewart.

Howard the Coach's Twin?

You be the judge:



Howard Bashman on the left and UCLA Men's Basketball Head Coach Ben Howland on the right. Oh and previously, Howland was the head coach of Pitt (in Pennsylvania of course).

Survey Says?

For some strange reason I'm on Sen. Barbara Boxer's (D-CA) mailing list. As a result I got an e-mail gushing about her ideas for this Congress. Also included was a link to a survey she has on her website that seeks to uncover the issues that constituents find MOST important.

You have three drop-down menus which list all the possible issues, with the exception of the third menu which also has an "other" option and room to write this said other issue. Now I'm as liberal as the next person, but I'm genuinely bothered by the issues she has available. See for yourself:

• Preserving Social Security and Medicare
• Protecting a woman's right to choose
• Making health care more affordable for families
• Ensuring that polluters -- not taxpayers -- pay for toxic waste cleanups
• Enacting a Patient's Bill of Rights for those enrolled in HMOs
• Fully funding the No Child Left Behind education law
• Ensuring veterans have adequate health care
• Increasing resources for homeland security
• Increasing the minimum wage
• Passing a comprehensive transportation bill -- to create jobs and improve transportation
• Ensuring that America’s judges represent mainstream American view
• Providing a tax cut for the cost of college
• Preserving more of America’s wild and natural places
• Passing a Violence Against Children Act
• Expanding the COPS Program -- to put more police officers on the streets
• Reducing our national debt
• Passing an effective National Energy Policy

Again, I realize this is nothing more than a political stunt, but at least there should be the semblance of representing EVERY viewpoint in California. Frankly, I'd have a heart attack if I was a classical liberal.

I am still in my holiday mood so I don't even want to discuss the merit of each issue.

The Devil Was An Angel, Too

[Note: I originally posted this as a comment to Armen's preceding post, but I thought it might be more useful for discussion on the main page.]

I have many thoughts on the topic of Armen's previous post. Good article find, Armen.

Firstly, I think that while the situation at Boalt has been bad for the past several years, I don't particularly like how Edley seems OK to air the school's troubles publicly. Looking at things from Edley's perspective, I understand why he's doing it: political opponents and UC board folks know he's serious about reform and serious about calling them all out for their roles in the problems at the school.

But it's a high risk strategy, and I worry that the risks haven't been adequately weighed. While ending on a positive note, the article -- and others I've seen like it -- spends a lot more time chronicling the decline of Boalt (which, as it is in the past, is "verifiable" and "fact" and therefore easier to report) than on the opportunities Edley promises (as these are only speculative at present).

So the problem is that Boalt is being repeatedly and at length depicted as a school long on the decline, and Edley is characterized as the savior. That's great for Edley. Not necessarily so great for Boalt Hall. Whether or not the school has truly been on the decline is a subject for legitimate debate. True, human and physical resources have taken a hit and tuition has risen precipitously as a result of Cal's budget woes. But the most important elements of a law school -- the students and faculty -- have remained fundamentally as strong as ever, and some programs at Boalt built over the last decade are unquestionably among the top 2 or 3 in the country (here I am thinking specifically of the law and technology stuff).

I worry that the real risk to Edley's strategy for Boalt is in the impact his tactics this year will have on future applicants. They read these articles, and they see a school with major structural administrative problems. Those aren't likely to be solved in the next three years> And so those wonderful applicants read about a school on the decline and decide to go elsewhere -- even though many of Boalt's problems won't really impact the quality of a Boalt education over the next three to five years(only the price; woe is my out-of-state tuition bill!). So Boalt might miss a generation or two of top applicants. And in a decade, when it's problems are worked out, Boalt may not be on the list of "top ten" schools that everyone applies to anymore.

Is it possible for Edley to pursue a different PR course -- to focus on the opportunities rather than the obstacles ahead, to accentuate the positive accomplishments of the past decade rather than the negative? I think it is, and I wish he'd do it. Not so that I felt better about the school -- I love it. But so that those still to come would feel more confident that in coming to Boalt they are coming to a truly special place.

Jesus Christopher Edley Superstar

There's a great article by Peter Hong in today's LA Times about the ambitious plans set forth by first year Boalt Dean Christopher Edley. The fiscal crisis that has plagued California is perhaps the single-most important issue facing the law school today and the Dean has some pretty ambitious plans for tackling the issue.



Briefly, Dean Edley, aside from posing for pics on top of the steps as students file out after finals, wants to switch Boalt to the Michigan and UVA model of privatizing the law school. And I say it's about time. As much as I hate saying this, but we're no longer in the California of the sixties where the UC's and Cal States were free to residents. While the Legislature and the Regents still refuse to call our payments tuition, that's what they are. I can't say I pay nominal education fees for going to the UC with a straight face. Dean Edley has made it crystal clear that he's committed to access to Boalt for the underprivileged and public interest law. If privatizing the law school is the best way to continue this mission then so be it. Frankly, we've reached an era in California where higher education cannot possibly compete with the Prison Guards Union for the Legislature's attention.

And completely unrelated but for the Jesus reference, there's an interesting quote from a 7th Circuit decision today about La Crosse, Wisc. selling a plot of land to the group that donated the money to pay for a Ten Commandments monument on public land. The lone dissenter writes, "And, as I recall the story, when asked whether the law of God or the law of man was law to follow, the answer by the founder of Christianity was, “Render unto Caesar the things that are Caesar’s and to God the things that are God’s.” Neither God nor religion requires an endorsement from Government—nor does the law permit it. I would affirm the finding and order of the district court." (Ash v. City of La Crosse, hat tip, Bashman, about whom I will soon come forth with some earth-shattering revelation).

Cheap Scotch!

While the title of the post is the butt of many jokes, the contents are a serious matter. The brains behind De Novo has a plea on her own blog for recommendations for a good bottle of Scotch in the $50 range. If there are any suggestions feel free to post them as comments here.

I personally don't think you can do better than a Johnnie Walker Gold Label at that price...readily available at Costco.

A Problem for Westen

(link)

The article is about a Virginia law that provides sentencing guidelines based on predictions of future criminal activity. Of course, this is a blatantly utilitarian model for sentencing that results in different people committing the same crime and being punished differently - so much for the correspondence principle.

Then again, this already happens. Judges get to choose incarceration times, and surely they consider the threat to the community when sentencing, even if they are only supposed to consider desert. This is one of those tensions in the law that are so intellectually maddening yet eminently practical.

But here the legislature wrote out explicit guidelines - the evidence of unequal treatment under the law is given, as opposed to implied. I imagine that if a case were to arise, it would stem from a person being sent to prison where someone else with different characteristics is given probation. I imagine the incarcerated criminal would be pretty pissed that he's being locked up; just because he's young/unemployed/some other characteristic.

Anyway, I found it interesting. Perhaps you all will too.