War of the Words

A Scientologist calling psychiatry a pseudo-science is like a member of the Heaven's Gate calling astronomy witchcraft.

Steve Sax and His Run-in With the Law

I don't know who ran this search on Google, but it looks like interest is growing for the fall season of Steamer Softball. Skipper J, I don't know if you are reading this, (or anything else for that matter since I wouldn't be surprised if you wake up around 2 PM daily, a tad sore and with an empty bottle of Hennessy next to you) but I think with a new crop of 1Ls about to enter Boalt bright-eyed and full enthusiasm this would be the ideal time to pad our line-up with ringers. You know, like Honus Wagner or Mordechai "Three Fingers" Brown.

Riddle Me This

I know it's been asked before, but why the hell is Robert Novak sitting pretty on CNN while Fitzgerald goes after Miller and Cooper? Actually this is even simpler, why isn't Novak in Gitmo yet?

Nuts!

Phil Carter will be joining the 101st Airborne very shortly for a deployment to Iraq. [Permalink not working, so just scroll down for the post]

I think the United States Army is fortunate to have such a person in its Officers Corps. It's certainly heads above the likes of Karpinski. I think he will do a fine job training Iraqi forces and commanding his own. I'm just hoping he's not too quick to purchase a T-Shirt that says, "I spent three years in law school and all I got is this lousy M16."

Death Wish

No, I'm not talking about the 45th installment of the Charles Bronson hit. The LA Times Magazine had an article this Sunday titled, "Dying on Our Dime." It's about the rising costs of keeping elderly inmates alive in prisons to serve out their life-terms. Ironically, or perhaps, not so ironically, a few pages later there is an excerpt from a book titled Undoing the New Deal; it's about the ideological basis of the new "economic crisis" facing Social Security.

How much more support do we need to finally institute a one strike and you're out law with a mandatory death penalty (let's say within 1.5 years of conviction to save costs on costly appeals that don't really amount to much)? That would kill (pun intended) so many birds with one stone. Oh and the 1.5 years should be spent in private prisons.

Weekend Update

After watching the Argentina-Mexico game with some hardcore Argentinians, it was refreshing to go to the Hollywood Bowl to catch the Arcade Fire. They're the current darling of the indie rock scene, to borrow the words of my friend who invited me. I liked the music and I'd recommend it to those into that genre.

Freudian Suit

The Supreme Court of California has agreed to hear an appeal by psychologist Elizabeth Loftus (currently at UC Irvine, and probably the most famous undergrad alumna of the UCLA Psych Dept). Loftus is being sued for breaching the confidentiality of the subject of another psychiatrist's study. Putting aside the obvious Tarasoff meets Moore jokes, or how the UC Regents should invest in writing a Torts casebook, I'm more drawn to the the story behind the case.

The Plaintiff was profiled in a journal article by a psychiatrist to "prove" the existence of repressed memories. Loftus then used some shady techniques (private investigators, confidential court records, etc.) to get info on this subject. She and a colleague then published an article arguing that the memories were probably false.

Loftus has had a crusade against repressed memory for quite some time now. But she's probably just the loudest spokesperson of research psychologists in general. A significant majority, if not all, reseach psychologists either don't believe in the repressed memory phenomenon or argue there is no evidence of its existence. Clinical psychologists and psychiatrists swear by repressed memory. Fights have been known to break out at talks on the subject. Imagine a therapist with 20 patients who claim to have been molested being told that those memories are not real. I agree with the researchers.

It is difficult to discuss this subject without someone's emotions getting the better, but it needs to be done. To date no study has shown that your brain is capable of accessing a memory that was once forgotten. This is not the same as you remembering something that you couldn't remember 5 minutes earlier. That's just a problem of retrieving...the memory is still there. Repressed memory implies the memory is extinguished but then returns (with the aid of a therapist and maybe hypnosis). Which leads me to the second points, studies by Loftus and others have EASILY created false memories in individuals. The classic case is the video of a car accident followed by a series of questions. One question will ask something like, "How fast was the car traveling as it approached the stop sign?" when it was actually a stop light or a yield sign or something. Later, the person will claim that there was a stop sign at the intersection, rather than what they ACTUALLY saw.

The LA Times had another story in its main section on how brain cells recognize familiar people and places, or more accurately how we store that information in abstractions. This is why I have issues with eye witness identification, and why I am not too eager to embrace repressed memories. Memory can be created and it certainly can be altered. The Catholic Church may have wanted to rid itself of bad press (even God needs a press agent these days), but if the victims' claims were based on repressed memories, I would have defended vigorously. I did say "if" because I think that the vast majority of the cases were not repressed memories just people who had not come forward as children.

In the end, I think the suit will be dismissed because much like anyone in the general public, Loftus owes the subject no duty of care. On the bright side, the UC will now sell repressed memory cell lines on the open market.

If Henny Youngman Got Mass E-Mails

The mass e-mail (minor link edit):

I don't usually find anything worth sending out over mass e-mail but I have here. Check out www.terrapass.com/ It's a brilliant company that first started as part of a class project in Wharton (Glass, stuff like this better be coming out of HBS). Basically they calculate how many pounds of CO2 come out of your car every year then allow you to purchase the equivalent in emissions credits on the chicago climate exchange thereby reducing that exact amount of polluants from other sources like a power plant. Check out this cnn article for more info.

Some of you are law students who probably don't drive much. I'm still planning on purchasing a terrapass for hybrid cars to offset the 30 miles I drive each month. Though I realize there are some obvious problems with this approach (giving people afalse sense that their car isn't contributing to global climate change is just one example) it's still an excellent way to support anti-global warming efforts every day.

The mass reply (link my own):

What do you do if your car isn't listed at TerraPass. I own a 2005 Canyonero.

"Top of the line in utility sports,
Unexplained fires are a matter for the courts!"

Yoo May Have Missed...

This op/ed in yesterday's LA Times by Boalt Prof. John Yoo asking the question, "What became of federalism?" It is basically a States' Rights orgy that even Daniel Calhoun wouldn't dream of. I'm too groggy and tired to make a cogent, or even sensible counter-argument, but I will offer three points.

1. The crocodile complaints against the Bush Administration are pointless. It'd be like Grover Norquist complaining that the Admin hasn't done enough the screw the poor or Ralph Reed bitching that we haven't praised Jesus sufficiently. Sure you can gripe about those things, but don't pawn yourself off as a critical (or even a neutral) observer of the Admin.

2. The Civil War.

3. E Pluribus Unum.

Mr. Manners

After one month, I believe I have developed sufficient expertise to list LA Subway riding rules, laws, and etiquette (some serious some not).

1. If you buy a ticket, you're a schmuck. Only 1.5 LA Sheriff's Deputies patrol the entire rail system for violators. Plus 3 rent-a-cops. But don't worry, they only stop minority juveniles who kinda don't look like they belong...you know the types. Got a tie? Welcome aboard. (Oh yeah, no turnstiles or anything).

2. Be prepared to walk when you don't want to walk and not walk when you want to walk. In other words, when you're dead tired, no escalator will be working...at least not in YOUR direction. If you're in a rush, no one will obey the "stand to the right" rule on the escalator. Actually, 5,000 people will obey but one will not, causing the rest quietly stand back and huff and gruff instead of yelling, "GET THE FUCK OUT OF THE WAY." Personally I'm tempted to yell extra loudly to make sure the person on the other end of the cell phone he/she's holding hears too. Nothing gets me going in the morning like fucking up a major transaction. Or a call to the yoga master.

3. Be sure to get on the right train. Some people are surprised to learn that LA has a subway. The rest are shocked to learn that it has more than one line. That's right...there are TWO subway lines in LA. One goes from Downtown to North Hollywood (my line), and the other goes from Downtown to Wilshire and Western. What's the difference you might ask? Two stops. That's right...that extra line has TWO, and only TWO stops that deviate from the North Hollywood line. I won't even bother to estimate the cost to taxpayers of keeping that thing going.

4. Elevators and handicap seats are for the able bodied.

5. The seat next to you is for your personal belongings.

6. Do not shower regularly, use deodorant, or any other personal hygienes during the weekend.
7. If you're the conductor, speak as inaudibly as possible. Everyone in LA knows where everything thing is...why bother. It's not like there are any touristy spots along the subway line(s).

8. The one conductor who IS normal spends 5 mins at my stop (Civic Center) to flirt with his g/f as she gets off.

I reserve 9 and 10 for further observations.

BTLJ Article Idea

I attended commencement ceremonies at UCLA today and yesterday. During the entire time I did not see a single conventional camera. I wonder if it's unique to the event or if we've reached a time where film photography will go the way of Renaissance art.

Dark Side of Solomon

Earlier I expressed concerns that many supporters of the Solomon Amendment do not or did not consider, i.e., the use of Federal money in other areas to boost military recruitment, namely in high schools.

This AP article (via Yahoo) confirms those suspicions. To be clear, I don't have a problem with JAG recruiters running around campus trying to convince law students with six-figure salary jobs lined up to cut that down by 75%. We can certainly weigh all the options fairly. But I cannot say the same about 17 or 18 year olds whose college prospects are about as bright as the dark side of the moon. The implication in this instance is not the First Amendment. Recruiters simply want the contact info of students from school administrators. This raises the trickier right to privacy concerns. But more importantly it raises awareness of a Defense Department that is now using anything and everything at its disposal to meet the quotas for minimum sustainability of a conflict with no end in sight.

We might as well tie Federal Pell Grant money to a stint in the Marine Corps.

F'get About It

In my daily subway reading of the LA Times (which accompanies the equally intellectually stimulating hobby of psycho dodging), I ran across an op/ed by David Gelernter entitled, "We Are Our History -- Don't Forget It." Fair enough. I strongly urge anyone to read it since it is a perfect example of ignorance of history...or at least ignorance of what history ought to be.

Gelernter begins with a mockery of his son's female high school classmate who said, "If I'd lived at that time and been drafted...I would've gone to Canada." Based on his sons assessment he believes that the student did not understand that she could not be drafted as a female. Then he blames history teachers for this, namely, "Our schools teach history ideologically. They teach the message, not the truth. They teach history as if males and females have always played equalre roles. They are propaganda machines." As you read the rest, you will see how essentially Gelernter takes exception to any historical account that does not place America (and the West) on the high pedestal that it so rightfully deserves.

For all intents and purposes, he's full of shit. For the last three or four decades historiography has drifted from the rote teaching of facts of major events and people to the more obscure realm of shedding light on those not often talked about...that's right the common folk. History wants to tell the story...the full story. Facts that Gelernter prizes so much are meaningless without the proper context. History is now attempting to provide both. Upset that Sen. Durbing (D-Ill) compared Gitmo to the Soviet Gulags, Gelernter recites the numbers. Noticeably absent is the definition of hyperbole or simile.

Those numbers are meaningless, David. Absolutely meaningless if you don't know the story behind them. WHY were so many people subject to that prison system? WHO placed them there? Could be government without an effective judicial or legislative branch answering to the masses? (Remember, on paper, the USSR was one of the most democratic forms of governments. What could be better than a bunch of local councils making all the decisions?) If Gelernter had bothered to learn the story of the Gulags, then maybe he would have had a bit more suspicion of an administration that asks the judiciary to rubber stamp any and all detention of a citizen or not based on a declaration by a DoD official. (Solzhenitsyn got 8 years after a five minute "trial.") I know that Gelernter is glad that President Bush remembered Kennedy's promise to do whatever it takes to preserve liberty, but I also wonder if he's glad that President Bush, and many of his predecessors, forgot President Eisenhower's call to beware of the military industrial complex. Nah, that was just diatribe and hell...ideology.

The greater, and more dangerous ignorance that Gelernter, and those who share his view, should fear is the continued and unwavering adherence to the presumption that "We" are right and "They" are wrong. The end of his article is the perfect example of the recitation of the City Upon the Hill ideology that has defined American self-preception since colonial times. And THAT is what's led to some of our darkest times. Don't tell Gelernter that, the facts are on his side. He writes:

"There is an ongoign culture war between Americans who are ashamed of this nation's history and those who acknoledge with sorrow its many sins and are fiercly proud of it anyway. Proud of the 17th century settlers who threw their entire lives overboard and set sail for religious freedom in thier rickety little ships. [But not proud of the Indians who tried to defend their land and livelihoods. Similarly not proud of those who don't use rickety ships to get here, but walk over. No, those are criminals defying the rules of the religious freedom fighters. Oh, and certainly not proud of those who think religious freedom means free from a government dedicated to pleasing the Lord Almighty.] Proud of the new nation that taught democracy to the world. [By democracy he means rule by the people, as the Greek root implies. And by people he means white males. And by white males he means those over 21 until the 70s. Don't forget the old democracy only if your Grandpa had it.] Proud of its ferocious fight to free the slaves, save the Union and drag (lug, shove, sweat, bleed) America a few inches closer to its sublime ideals. [And then smoothly glide back away from those ideals by a Court dedicated to undoing the lesson of the Civil War in the name of States' rights. Calhoun anyone? Resist those same dragging, lugging, and shoving because naturally everyone being equal does not involve the government taking AFFIRMATIVE steps. Don't forget the confederate flag, David. How proud we are of the Union indeed.] Proud of its victories in two world wars and the Cold War, proud of the fight it is waging this very day for freedom in Iraq and the whole Middle East. [Proud of French women kissing American soldiers in the streets of Paris. Proud of Iraqi mothers pleading with American soldiers.]

If you are proud of this country and don't want its identity to vanish, you must teach U.S. history to yoru children. They won't learn it in school. This nation's memory will go blank unless you act."

I'm fortunate enough to not have children but what I will teach them is to question long-standing assumptions. I am, and my children ought to be, proud of this Nation's ideals and accomplishments. But they shouldn't stop there. They shouldn't assume that those outweigh the negatives. They shouldn't assume that the blemishes are all in the past...a different time, a different era...I mean does anyone really display bigotry towards immigrants these days?

If our nation's collective memory consists of looking at the numbers in Vietnam and concluding that it is not the same as Iraq, then by all means, let's erase it. Why not add to that memory a bit about an inflexible doctrine leading to the escalation of an unnecessary conflict? I'll let Gelernter figure out which conflict I speak of.

UPDATE: Shockingly, VC co-conspiritor Juan Non-Volokh couldn't agree more with Gelernter.

Elementary My Dear BTLJ

Today in every Boaltie's inbox appeared the following e-mail (no it's not some scam by Nigerians):

Subject: Theft in BTLJ Office
Date: Wed, 15 Jun 2005 10:58:21 -0700
To: #Students-All <#students-all@law.berkeley.edu>
Cc: Holly Parrish

A theft occurred in the Berkeley Technology Law Journal's office (587 Simon) sometime between Wednesday, June 8 and Monday, June 13. Two flat screen monitors were stolen. As there was no evidence of forced entry into the office, it is likely that either the door combo was used to gain entry or the door was not completely shut. The combination has been changed.If you are working here during non-business hours, please be aware of your surroundings. Report suspicious looking persons to the UCPD. Keep your office door closed. Make sure the door is closed and locked behind you when you leave.UCPD phone numbers: All Emergencies: 9-1-1 (from a cell phone: 642-3333) Business and Non-Emergency Line: 2-6760

-gar

Turns out the wads of cash stashed in the BTLJ office were not touched, leading authorities to suspect an inside-job. According to anonymous sources, the five-day time frame coincides with a LAN party hosted by as-yet unidentified editors. One source remarked, "It was just like freshman year of college when I played counterstrike without even being aware of anything else, like my 98 on a linear algebra midterm."

Desparate to light the office with photons emitted from liquid crystals, the BTLJ has asked the Criminal Law Journal to investigate [Credit: A. Mink]. The Criminal Law Journal's His efforts may not be necessary as 800 Bay Area firms have signed checks in the six digits to replace the LCDs. Currently, BTLJ is soliciting competitive bids for Jumbo-Trons.

Out of town scores at the Oakland Coliseum will now appear on two 15-inch LCD monitors.

Student v. Prof

Almost sardonically I asked yesterday whether a forced curve in law schools has the effect of reducing the number of people who complain about the grades they received. Well today I learned the answer is a resounding YES! Law students don't complain about grades, they SUE! (Hat tip: Bashman).

On a side note, I find it amusing that this all took place at George Mason University Law School the hotbed of libertarian thought (where you're Ayn Randized instead of that other warning about your rights). I can see the Dean saying something to the effect, "Headache shmeadache, welcome to law school, where your brain hurts."

Speaking of Grading

No I'm not talking about ripping off a lane of PCH for your own private highway, but with Boalt set to release grades in the coming ice age, I can't help but wonder about the benefits of a forced curve. The idea ran through my head when I learned that Yale does not have a forced curve. The professors are free to give whatever grade (H, P, or Sub-P) they want. And no rankings. Ever. Not even the third year bull shit that Boalt has. Putting the whole competition/illicit drug use problem aside, I wonder if a forced curve system actually has the benefit of reducing the annoying fucks that bitch about grades? If you are one of these people, I really can't make any apologies. I just hate it when people argue with professors (or TAs in most non-liberal arts schools) over their grades in the absense of an error.

Granted, I think law students are the last people to not have a sense of entitlement, but I still wonder (and hope and pray) if such an effect exists.

Just Beachy

A few days ago the LA Times ran a story on Malibu residents along Broad Beach (a tiny street, even by Malibu standards lined by multi-million dollar houses on the beach) using earth moving equipment to create sand dunes by moving the sand from the beach onto their properties. Why would Malibu residents go to such nutty extremes? To impede the public's access to the beach of course. If you are hopped up on enough adderall then you probably remember that private property can only run to the mean high tide line, and the public has an easement through private property to that public portion of the beach. [The article explains precisely how the sand dunes erode public access].

The clever Malibuites think that by removing the sand, they will thereby keep the public from prancing through their property. Reading the story I can't help but have the urge to pitch a tent in someone's back (or is it the front) yard, play loud music, maybe cook up some ethnic Armenian kabobs, yada yada yada. Conversely, I don't care if I have an image of the Virgin Mary on a tree on my property, I don't want people prancing around in my property as they please. In the end, I can't say anything better than the following letter writer:

With the precedent set by the Broad Beach homeowners who moved sand from the public beach onto their property, I finally have found a free source of fill dirt for the grading in my suburban backyard. I think I'll just tool down the road in a skip loader and scoop up free dirt and sand from my neighborhood public park. I'm sure the ballplayers and other (former) park users won't mind. Hey, I need to pave my driveway too. Think anyone will miss a lane of PCH?

Phil Hof

Castaic

Lies...And Statistics

We've talked a lot about misuse of statistics and poor math in the law. I'm happy to report: it's not just us.

Take this example from ESPN. In many sports (baseball in particular), the collection and "analysis" of statistical data has become the subject of books (see "Moneyball"), television shows ("Stump the Schwab") and movies (well, maybe not movies). It has also given rise to the amusing phenomenon of the meaningless statistic. And here is a perfect example, from Marc Stein's preview of the NBA Finals (now, I can't really explain why I am even following the NBA finals, much less reading previews, but I think it has something to do with the fact that I am huddled in front of a computer at least 8 hours a day):

"The Pistons are proven champions who got back to the Finals by improving to 7-0, including last spring's playoff run, in games with a chance to eliminate the opposition."

Let's break that down: "elimination game" translated into English is simply the last game of any series. Obviously, the champions don't lose the last game of a series. So the fact that the Pistons have won the last game of the series for seven series in a row is no more or less remarkable than the fact that they have won the last seven series in a row. I suppose that on some level, Stein could be saying that they haven't lost when they had a chance to close out a series, even when their own elimination is not at issue (i.e., they lead the series 3-2 and they win game 6), but again, what is special about this statistic? What more does it tell us than the fact that the Pistons can win serieses?

Oh Civ Pro II, Wherefore Art Thou Civ Pro II

What the hell is personal jurisdiction? What the hell is subject matter jurisdiction? I couldn't be happier when Bundy said, "This is all for Civ Pro II, just know that courts need jurisdiction." But now that I have to discuss minimum forum contact I'm starting to wonder. And in general therein lies the secret to the Federal judiciary. What takes us a semester (sometimes two) to comprehend is decided after several days of inefficient westlaw research.

Stay tuned for my discussion of judicial philosophies.

You May Not Have Seen What I Did This Summer

This is a hodgepodge of pics I've been meaning to blog about but never had the time.

***

First off, I wanted to create a series entitled, "The Bikes of Berkeley." Unfortunately I only got two pics all year (one and two), with the rest of time my camera not being with me. In Manville I was witness to a lot of weird shit, but this was by far the weirdest. I mean, I had my gripes with the building management, but I found other ways to vent my anger. These guys sure knew a thing or two about anger management. They put on a demo for anyone visiting the Buddhist Temple across the street for its annual fest. Conveniently held during finals. Inconveniently held in front of my window.

Here in LA, I spent the last two days in Big Bear Lake. Actually I spent it NEAR Big Bear Lake. If I was in it, I might have suffered a from the same fate as Fish A and B. (C not photographed). I searched for an answer until I found this boundary maker deliniating the beginning of the National Forest. I think I'll blame it on Bush. However, I won't give him credit for this part of the lake.

Dude, Work Sucks

Like totally! I'm definitely entertaining alternatives to this whole law thing right now. Actually not just the law thing, but the whole waking up early thing is a bit too much. Somebody out there has to be having a summer where they schlep (sp?) around till about 1 or 2 then get into whatever it is they do oh let's say till dinner then the fun and games begin. Public interest folks? Anything? Huh? Is that all really behind me in undergrad and 1L years? Does MoFo not have Keggers in the courtyard?

Oh and while I'm at it, I absolutely love how the clerks get to have access to every god damn website while I hit refresh on the visually appealing CalMail homepage every 3 seconds. One clerk is the gmail and AIM type the other is the box scores on Yahoo and NY Times type. If by some happenchance they read this (since they have a firewall that'll grant access to the Fed Reserve security system), I should make it ABSOLUTELY clear that I have nothing but love for you guys, but honestly, that Novel firewall is my Lumbergh.