Monday, February 28, 2005

In Other (More Important) News

If I see much more of this in the coming years, I may have some crow to eat regarding one dumb Texan. I know, I know, but that's the sneaky little bit of Christopher Hitchens in me.

We'll see what develops, but I'm hopeful.

So hopeful that in the interest of supporting good behavior in the foreign community, I think I should use my awesome future legal salary for travel, but only to places where I support the actions of the government. I may not be able to control where America's industrial dollars always go, but I can vote with my wallet and hotel and restaurant bills.

So, Lebanon, with luck, you may be on the list of "Oh my god I passed the bar!" vacations. Iraq, maybe you (less likely).

China, Cambodia, Thailand, Iran, etc. you are all on notice. If you want me gawking at your heritage, eating your local delicacies, and doing my best to be discreet and respectful, consider being good.

Ok, back to IP.


Chiming In

Since everyone else seems to have spoken to the ideological diversity question, I'd just like to add this thought. Democrat/Republican is the wrong measure of intellectual diversity for a law school. This isn't a political convention (though it might be a spawning pool). It would behoove us to be exposed to the most views of the law as possible. As my legislation class has made clear, there's a lot of difference between a Scalia and a Rehnquist (one beats it to the text, the other divines Congressional intent). A similarly marked contrast exists between those Chicago zanies Easterbrook and Posner (textualist and efficiency worshipper). The "liberal" judicial thinkers also show these contrasts. Thurgood Marshall was a stickler for rules and the rule of law, and from my first pass through his cases, I'd consider him a textualist to a degree. Enter Justice Stevens and the mystery of Congressional intent. This is true of older judges too. Cardozo and Holmes dominated legal thought from opposite ends for the first half the century, and look at all the fertile goodness that came out of that!

If my interest were purely for a legal education, my criterion of law school diversity would be a search for different jurisprudential philosophies. So, all of the above, a few jest- err... critical theorists, a healthy dose of quantitative scholars (mmm, I love 'em!), even some guest professors from the evangelical law schools (Liberty for one).

So, as a measure of Boalt's diversity, I would look to our professor's writings. Since that's a tough job, I'll resort to a much cruder proxy (but one that likely still possesses a decent r-squared): who they clerked for.

Now you're curious aren't you? Well, unfortunately for you IP still needs to be read, civ pro reviewed, and intramural basketball starts tonight (now you know where my true interests lay). However, when I get back, I'll look into assembling the data.


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Uhh Blogsphere, we have a problem

In case anyone by some strange coincidence is wondering why De Novo is not up, rest assured, it's some domain hosting issue. I guess we didn't have a fee simple in the property after all.

Sunday, February 27, 2005

There's no Sex Diversity in the Boalt Hall Classroom (Tell Tale Stats, pt 2)

I apologize for the delay in posting, but one sober post is worth a 1000 drunk Armen pictures. I don't want to start a whole Chris Rock/Sean Penn thing here, so I will let my earlier post and Warren's retort to speak for themselves, with the one following exception. I want to thank Warren for pointing out another potential base rate for measure: rate of Democrats v. Republicans (if that's what you really want to use) among graduating Ph.Ds. Better yet, how about we survey the unemployed Ph.Ds to see what their ideologies lean to. Wouldn't THAT be a more accurate way of ferreting out discrimination, if any?

Moving on, I've wanted to opine on the issue of (liberal) bias at Boalt and Berkeley in general for quite some time. I think the best way to do this is by dividing the law school discussion among the students and faculty/admin, and then separately discussing the campus as a whole.


I want to premise this with a dicussion we had with my next-door neighboor, who is a MPP student here at Berkeley where he described the only non-liberal in his class as an independent center-lefist. To quote, "I mean our discussions are whether civil unions or marriages are best for homosexual couples. How much tax-breaks should we give them? I suggested that we recruit like the Berkeley Republicans to come tell us what God thinks on these issues."

That in a nutshell gives the general perception of Boalt. A perception that is for all intents and purposes, false. It's not false becasue he have 135 members of the Republican party, but it's false because we have a very large number of independent thinkers. When speaking of the lofty goals of ideological diversity, I can't imagine that the purpose behind such a goal is to get people to yell down each other's throats, or to have each group selectively use material to support their previously held beliefs and not look at the other side. Are there people who do that here? Hell yes. Are they challenged when they do that in class? Yep. Thanks to your independent thinkers. And what I mean by independent thinker is those who do not take their beliefs and biases for granted. They challenge their beliefs and refine them whenever they realize it is untennable. Those are the independent thinkers.

To give an example in Crim Law last semester, when the discussion turned to Capital punishment, the entire class was pretty much against it by a hand vote, but there were quite a few people who made eloquent arguments for its presence in the American legal system.

As for myself, I no where near an independent thinker. But I do enjoy being challenged by classmates. To the extent this happens quite a bit, I think the perception that we're all pot smoking Deanheads is off, way off.


The above applies to the faculty as well (I think). I have not had the experience of a 2L, 3L, or grad, therefore I'm not going to spend much time on this, but suffice it to say from what little experience I do have, ideology is either presented from the center, or if it glares through it's more of a function of a professor's research interest/professional position on issues. How this relates to personal ideology is beyond me to discuss. Again, as an example I think Prof. Contracts and Prof. Int'l Trade (who are quite similar to each other on various measures) do not take any liberal beliefs/arguments for granted.


This is a different story. Since I have not had as a close an interaction, I cannot really discuss detailed examples, but from my general readings of the Campus Newspaper and what have you, I think there are plenty of examples of knee-jerk liberal reactions that are not occasions to sound off independent thought alarms.

Case in point: Protest against military recruiters.

During the main campus career fair people protested the military's presence because the Solomon Amendment forces schools to allow them access despite the military's don't ask don't tell policy with respect to homosexuals. Let me put this bluntly, (AND ANY HIRING PARTNER AT ANY FIRM PAY CLOSE ATTENTION), I am curious how many firms have a de facto don't ask don't tell policy. Hmmm? What I am certain of is that there is no discussion of our society's effective imposition of don't ask don't tell almost everywhere. Good luck getting hired at Walmart in Nashville if you're gay. Are these discussed? Nope. Knee-jerk protest against the military. "We don't want them here." "War bad." How about a discussion of who you want to be in the military? A Berkeley grad or an enlisted kid enfatuated by guns since the age of 5? Nope, war is not the anser, case closed.

I think the best example was when a counsel for the 9/11 Commission spoke at the law school and a nut began yelling, accusing the speaker of conspiracy, etc., which was met with almost uniform scorn from the law students and faculty in the audience.

But as they say, first impressions are hard to break. For all I know, Marx was just a typical union rep.

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For those of you just tuning in...

Just thought I'd drop in to concur with Justice Earl re: the detrimental effects of the relative lack of political diversity at Boalt. Actually, co-blogger Ann and I shared similar thoughts on this important topic in posts a couple of months back: here (Ann) and here (me).

Not to contradict myself too much (but I am large, and I contain multitudes), but I now think there is probably more political diversity than appears on the surface at Boalt. But this an area where perception really matters, and the most visible student groups and professors at Boalt (John Yoo excepted) tilt markedly left.

But what I really wanted to talk about in this post is a phrase in Earl's closing paragraph. In the interest of a more intellectually diverse environment, Earl says:

"I'd gladly trade half my Boalt 1L class (and faculty) for U of Chicago's."

What I want to know is, what would you trade half of your Boalt 1L class for, and when? Leave your responses, hopefully clever and funny, in comments. I'll get us started (though not promising clever and funny):

I'd gladly trade half my Boalt 1L class for a never-ending pack of gum that I can carry around to ward off my morning coffee-breath. (See, I'm looking out for all of you too, Boalt Hall! Or at least the half of you that I'd be keeping...)

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Friday, February 25, 2005

The Tell-Tale Stats, Pt. 1

Professor Todd Zywicki of George Mason University Law School has a post today on VC discussing a study by Dan Klein that found about a 9-1 ratio of Democrats to Republicans among the faculty at UC Berkeley and Stanford (combined). In this post I address (1) why the study (at least as presented by Zywicki) is complete bull shit and (2) how Zywicki manipulates the flawed study even more. In part 2, I will address the issue of intellectual diversity at UC Berkeley and Boalt.


1. This is a survey of voter registration records of faculty members of each school.

2. Therefore they only take into account PARTY registration based on those records. Did I say PARTY? I mention this because blogfather Eugene Volokh heartily endorsed the concept of Democrats voting across party lines in November.

3. This, in turn, means that the beginning of Zywicki's post and the article ("The popular vote for President went 48 percent Democrat and 51 percent Republican. This nearly one-to-one national diversity is unlike colleges and universities, where a one-party system prevails") are examples of a nice bait and switch. Do you see the sleight of hand? Implicitly Klein is suggesting the breakdown in the country is 48-51 for Democrats to Republicans, NOT, that the breakdown AMONG VOTERS is 48 for KERRY and 51 for BUSH. Now I'm not arguing this is a huge error that explains away all the results of the survey, but it's at the very least intellectual inconsistency and at the most downright dishonesty.

4. Ignoring confound variable #1 -- base rates: Now as I said in 3, the base rate used is the result of the 2004 Presidential election rather than the breakdown by party registration nationally. But of course the measure is of 2 schools, located in Northern California, specifically in the Bay Area. You might wonder what national party breakdown numbers woul have to do with two schools in this area. I wonder the same thing. I'm also wondering why local numbers weren't used. So let's take a look shall we? Hmm, vote for President in 2004 in Alameda County 75% for Kerry, 23% for Bush. And if we now turn to Santa Clara (I think Stanford falls under Santa Clara, not sure because the County line is very close) but anywho, that county had 64% for Kerry and 35% for Bush. So roughly in those two counties combined the ratio is 2.5 to 1. Not exactly a 9:1, but then again not exactly a perfect 1:1 either. Could it be a factor? Well if it was an actual "scholarly" study, not just one claiming to be one, these things would be taken into account.

5. Ignoring confound variable #2 -- time: Important to Klein and Zywicki is the almost complete lack of Republicans among junior faculty. They believe that as full professors retire, assistant and associate professors coming up the tenure ladder are replacing the more conservative full professors. Umm, paraphrasing Churchill, "Anyone under 30 and not a liberal doesn't have a heart, and anyone over 30 and not a conservative doesn't have a brain." Naturally, I'm willing to bet a pint that ALL people get more conservative as they get older, up to and including assistant and asssociate professors. Does this mean that the possible effect that Klein cries wolf about does not exist at all? The answer of course is that I don't know because not all the variables were controlled for.


1. The prima facie case for bias: "There seems to be some ambiguity about what I wrote. First, I did not say that there was a bias here. I said that if we saw a ratio of 30 to 1 in a general population that we know to be roughly 1 to 1, this usually will create a prima facie case of bias."

Putting aside with the flaws of the 1 to 1 ratio as discussed above, there is the other problem of "general population." I'm a first year law student, and Zywicki is a tenured professor of law, so I'm not going to even remotely pretend that I know any fraction of the knowledge of the law that he does. HOWEVER, I'm also fairly confident that a comparison to the general population is not always the best comparison. Specifically he's using a legal standard, one used in discrimination cases. I have no background in this area so I don't know the relevant case law, nor do I have the time to look things up, BUT, if it's anything like proving a malpractice for example, then of course it's not so obvious that the comparison should be to the general population. I have a sneaking suspicion that the ratio of women to men (to borrow Zywicki's example) at say Cisco systems is not nearly close to the ratio in the general population. Does this create a PF evidence for discrimination thereby shifting the burden on Cisco? I don't know, but my hunch is that it wouldn't. But even if it did, a quick showing of the ratio in the relevant population (tech employees, Silicon Valley, whatever) would rebut that presumption. As a matter of fact Klein notes that his numbers are not that different than nation-wide studies. Well if that's the case, then we can shut the door can't we? The job just attracts certain people (cf. military discriminates against Democrats based on ratio compared to general population).

2. "Where is the blue-ribbon panel at Stanford on intellectual diversity? "

This, of course, is a legitimate concern. One that I actually share with Zywicki, which I'll turn to in Part 2 (probably tomorrow).

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Thursday, February 24, 2005

Bushism? Why yes please

As I've said before, I can't get enough of Volokh's objections to Bushisms of the day. And there's one to today's Bushism of the day:

"After all, Europe is America's closest ally."

As the saying goes, with allies like this...Anyway, I'm short on time so I'll succinctly explain why this is funny. It's about as accurate as "Mission accomplished." Volokh thinks, "Yet surely saying that Europe is our closest ally is just the time-honored and quite reasonable diplomatic trope of talking about aspirations of friendship as reality." No, it's more like living in your own warped sense of reality, hence why it's laugh out loud funny. (Remember: "He forgot Poland.")

I wonder if John Howard will take offense at this continental snuff?

I'm tempted to award Volokh 0.5 point in this round because he correctly pointed out that Europe can mean the European Union (or at least our NATO allies from Europe). Eh, why not.

Slate 4.5, Volokh 0.5

A Game of Risk

No I'm not talking about the Cleveland Steamers' 16-6 victory, but in a comment to one of my posts on DeNovo talking about my alarm not working, Hufflin and Puffin notes a quiz she has developed to calculate the risk of her worst nightmare, getting called on in class.

While the quiz is entertaining to read, it's not quite as entertaining as the Which Justice Are You Quiz (Hattip: Repatriated Expatriate, and caveat: lots of pop-ups) and at the same time it's just long enough to get me to drop it in the middle and get back to reading to prep for class.

Wednesday, February 23, 2005

Tarasoff Endearment

With Cleveland Steamers softball in full swing (shameless self advertisement for our game tonight at 11 at Maxwell field, come one come all), I decided to read the release of liability form that you must sign for the Rec Facility here. The highlights: (emphases in original)

"I, for myself, my heirs, perosnal representatives or assigns, do hereby release, waive, discharge,a nd covenant not to sue The Regents of the university of California, its directors, officers, employees, and agents from liability from any and all claims including the negligence of Recreational Sports Deptartment Facilities and Programs..."

"I also agree to INDEMNIFY AND HOLD The Regents of the University of California HARMLESS from any and all claims, actions, suits, procedures, costs, expenses, damages and liabilities, including attorney's fees brought as a result of my involvement at Rec...and to reimburse them for any such expenses incurred."

To quote the person who had to sign up, "Man, Tarasoff fucked us over." Yes, yes it did.

UPDATE: Steamers 16, Sigma Phi 6. It's good to win.

Tuesday, February 22, 2005

I'd like that pleading shaken not stirred

Oh man this is a classic Civil Procedure case study. Here are the highlights.
  • Sean Connery sued by neighbor who claims he's trying to bully them into leaving the townhouse they share.
  • Specifically, the complaint alleges, "Notwithstanding the cinematic James Bond image of consummate finesse, the defendant Connery, in true Dr. Jekyll-Mr. Hyde fashion, acts the part in real life of a bully who ignores norms of neighborliness and decency." Breaking it into appropriate wrong acts and authority to support the cause of actions we have:
  • And don't forget to drag Connery's lawyer into this because he said, "I think if we tie him up in several lawsuits, hopefully this will either permanently subdue him or drive him out of the building." Bad move.

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Don't Tread On Me

I just posted my preliminary take on Kelo v. New London on the property class board. Armen harangued me last time for not cross-posting, but I'm too lazy for that, nor do I want double credit for one post's worth of thinking. If he's desperate, he can edit the post and paste it in.

Anyway, I will leave you with the link to Slate that clued me in on it. I'd be curious to hear other people's reactions on this case. Hell, I'll buy the first round for people that want to discuss it Thursday or Fridayish.


"I don't know how I feel on this one. Eminent domain seems pretty solid, but I don't think Hollywood could manufacture more sympathetic plaintiffs. They were just minding their business, pursuing the American dream when the wrecking balls came for their family homes.

I have to admit if it happened to me, I'd be pissed.

I've also heard that the plaintiffs' cause is strongly supported by church groups who realize that they often hold valuable downtown properties that take up a lot of space and pay no taxes. If Kelo loses, their own only clout is to scorn any politician that condemns their sanctuary at the ballot box, but if they are a) not populous enough or b) unpopular, you can imagine how they could lose big-time.

But then again, as a budding lawyer with a hankering for New England condos and dreams of autumn bliss inspired by the New London lawyer's diagram, maybe we can just agree to screw over those working class schmucks and take their river views.


I think I just came out solidly for property rights on this one.


Monday, February 21, 2005

Less This Grace

In honor of someone running this search and getting a hit to this blog, I'd like to point to the gentle readers that Nancy Grace will now grace us with her presence on a permanent show on CNN. I've had 4 heart attacks from frustration boiling over whenever she gets herself on Larry King Live, and now a permanent show. The bright side is that she won't sneak up on me by surprise, and I can actually return to watching Larry King without peaking to see if she's on the show.

I've said it before and I'll say it again, the reason I don't like her is because (1) the southern twang pisses me off to no end, and (2) she forgets that she's no longer a prosecutor when informing viewers about important legal cases. The reason for no. 2 is that her fiance was killed I believe 2 weeks before their wedding. Tragic. Really. But to allow that to color your judgment...?

So I propose the Nancy Grace rule for HR managers at any DA's office: If a person would not be empaneled on a jury for a criminal trial, then they should not be hired as prosecutors.

Simple enough? The likes of Grace represent THE PEOPLE, not victims. As much as she likes to think of herself as a victims' advocate, that's really not part of her job description as a prosecutor. Should she do the best she can for the victims? Yes. Should she see herself as a sort of vigilante with a license to prosecute? Umm, not quite. I'll have more to say on this once I go through the Larry King transcript from last night...she had quite a few gems in there.


Sunday, February 20, 2005

I'm Afraid and Loathing It

I'm going to miss you big guy. You were my hero.



In my continued effort to deprive myself of access to television while studying, I joined my friend at a local cafe (Cafe Milano, for those of you wondering where this blogger frequents). Towards the end of our stay, a female sitting next to us was talking to her friend. My interest immediately piqued when she began to criticize panelists she heard for saying, "Yeah we're doing good" (as in for the poor grammar). She then added, "I mean and these guys are political strategists?" (pronouncing it, "struh-teee-gist"). Naturally nothing gives me more pleasure than correcting a critic. So I chimed in, "At the risk of sounding like a jack ass, you said 'struh-tee-gist,' it's actually pronounced 'stra-tuh-gist'."

Annoying Friend: "It's not the only way of pronouncing it. I've heard it pronounced as..."
Me: "Well it's the most common way."

I ended the convo there, but I was also tempted to add that the use she was complaining about may not have been incorrected given the context of the talk, e.g. if they'd been talking about doing "good work." A word of advice to Cal undergrads and others out there, "A closed mouth gathers no foot." And I do get pleasure out of putting feet in mouths.


Saturday, February 19, 2005

A Tale of Two (Insert Noun)

First and foremost I want to welcome Earl Warren to this blog with his first official post. I certainly don't mean to draw attention away from his post, which quite eloquently and wryly articulates my points (except I still think Yoo's a fascist because he's a fascist because he's a fascist).

But in today's LA Times there is quite an amusing article on Sen. Inhofe (R-OK), chair of the Environment and Public Works Committee subpoenaing records from two organizations that have criticized the Clear Skies Act (the article is by Alan C. Miller and Tom Hamburger if you are going to Lexis it).

The highlight: "The committee's majority staff director, Andrew Wheeler, said the request for the groups' documents did not stem from their criticism of the legislation. He said the panel wanted to determine whether the groups represented only regulators' views or whether they also were subsidized by outside interests, including environmentalists or foundations."

Hmmmmmmmmmmmmmmmmmmmm for a piece of legislation sponsored by an administration that went to the Supreme Court of the United States to keep secret the identity of those influencing its energy policies, it's a bit odd that they'd care about enviornmentalists lobbying against a piece of legislation that seeks to...dum dum dum...lax enviornmental regulations. Pot. Kettle. Black. Orwell.


Chinatown (in Port-Au-Prince)

I just saw two articles on Yahoo News (via AP) on Int'l trade. First is headlined, "US Watches as China Woos Caribbean." And the second is about US companies shifting profits back home because of a lifting of tax burdens.

I'd have more to say if I wasn't so damn drowsy (and I also think co-blogger Tacitus is in a better position to opine on these), but for starters the author of the first article couldn't think of a better word aside from "woo" to use in an article about China?

With that said, the initial gut reaction to reading that Red China is moving in next door is to have flashbacks of the Cuban Missile Crisis. But as they say, this ain't your daddy's Communism anymore. Historically we've had the best interest for the US in mind when setting Caribbean and Western Hemisphere policy (e.g. Monroe Doctrine, Roosevelt corillary, invasion of Panama and Granada, etc.) In a weird way, this might be a shift away from that by allowing the best interest of those Caribbean states dictate our policy (now I'm not so naive as to say that we're doing something against our interest here). The Chinese trading under our noses allows these countries access to goods and services at bargain prices (compared to getting them from US, Canada, or even Mexico). In the very abstract sense, as their wealth and economic standing increases, they will become much more attractive partners in the potential American Free Trade Zone (or whatever the hell it's called).

Manville of a Night

[Setting: Armen sitting at his desk typing away with the window cracked open to let in rain soaked, humid air. Outside window, in front of the entrance to his building, two young, durnk, love-brids begin singing "Build Me Up."]

Love Birds: [Off Key] "Build me up, buttercup, don't break my heart."
Armen: [Annoyed tone, yelling out the window] "Hey how about you let the Foundations do the singing huh?"
Male Love Bird: [Laughing for several seconds] Sorry man. [Continue laughing]
Armen: [Launches winamp, turns volume on computer up...tempted to double click on the song in question. At the last second, closes winamp, and returns to typing]

Friday, February 18, 2005

What is Armen doing right now?

Finally liveblogging will it go? I don't know. Just an FYI, currently Jeopardy is hosting it's Ultimate Tournament of Champions so that they are bringing top winners from the past to play for the chance to go against Ken Jennings.

7:00 -- Contestants of them is the biggest winner from 88-89 season? Hmm, I was 7 years old.

7:00 -- Alex jokes about wardrobe all are wearing (same color). Not funny.

7:03 -- Black cover with a prism refracting lights...if you don't know this is Dark Side of the Moon, you need a crash course in great music.

7:06 -- Contestant 3 (Dan) gave a talk at Berkeley on humanities and Jeopardy. Mildly amused. Berkeley needs to host the college was fun to attend at UCLA.

7:08 -- Is it just me or does Jeremey (no. 2) sound and look like Gary Busey (including drug/booze problems).

7:09 -- Alex being a jackassfor the first time in the game:
Clue: "This mythical animal carried Zeus's thunderboalts" (in the category "It's been a 'gas'")
Contestant 3, "What is an eagle?"
Alex, "No."
Number 2, "What is Pegasus?"
Alex, "Yes, remember gas must be in the correct response."

7:11 -- Contestants being idiots...clue is about dogs used in "this Homeland Security Department agency." Answer given? "What is the American Red Cross?" Sigh.

7:13 -- What the fuck are the rules for the "Hidden books of the Bible" category? Answer must be formed by letters in the clue? If you're a contestant on national TV do you think you can comprehend what the hell Alex said?

7:19 -- Contestant 1 invokes the Ken Jennings/Salt Lake City connection again, but unlike Ken he chokes on the Daily Double.

7:20 -- Well after two contestant down, two to go (guy from Salt Lake choked a little bit more after the Daily Double to end up with 0. Hmm I wonder who the folks in Utah admire more.)

7:21 -- Crap...because of blogging I missed the Final Jeopardy category.

7:24 -- Ok it's wordplay. "Type of war that's 5 letters and can be made using only roman numerals." Shit...umm...oh..civil. That makes sense. Hmmm that was a bit hard .

7:26 -- And we're done. I did not attempt to add as much color commentary as Tacitus in his Civ Pro liveblogging, but I did my best. This of course, is best for those who watch the show religiously and appreciate the dorkiness that is liveblogging jeopardy.

Thursday, February 17, 2005

The Others are closer than you think

Below, I wrote about an incident where I simply assumed UCPD was called to deal with a transient in the building.

According to anonymous sources, he was actually a resident. Apparently he'd been making loud chanting/meditating noises. I've conversed with the person in question once during a courtyard "BBQ" (where In n Out Burgers were served) and everything seemed alright. If this is in fact what happened, then it would explain why the resident on her bike was upset. It doesn't, however, explain why the officers had to scuffle with him.

Oh yeah and speaking of drama, I have my memo due in 14 hours and we just had 2 3 4 fire alarms go off within a half an hour of each other. The electrician has been called in.

Update: Ok confirmed that it was a grad engineering student who for whatever reason lost it when UCPD tried to confront him. Now I'm wondering about the ambulance being called in. Did the cops fuck him up that badly that they had to call in the medics?

Oh yeah, and if the strikethroughs aren't painfully clear, we had 4 different fire alarms last night. I said it to some of the residents last night, the most troubling part was that for the third and fourth alarm BFD rolled up without its lights and sirens going. If it'd been a real alarm, we'd be jumping out of windows while the guy checked his blind spot to make the turn with the blinkers on.


Anatomy of a Cynical Professor

After pondering who played the supporting role in "Anatomy of a Murder," Prof. Civ Pro just gave us two rules to live by:

1. There are no bad lawyers, just bad cases.
2. If one person is going to go to jail, it should be the client and not the lawyer.

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Wednesday, February 16, 2005

Andrew, It's Fox News. You're Fired.

Fox News(!) legal analyst Andrew Napolitano delivers this scathing indictment of the Bush Administration Justice Department -- namely the prosecution and conviction of Lynne Stewart this week -- in today's NY Times. Interesting stuff, particularly considering the guy appears on Fox News for a living.



In case you're fortunate enough to be done with the second draft of your brief for Written and Oral Argument (and I suppose unfortunate enough to be in Berkeley) feel free to come to Maxwell Field tonight at 11 to watch your Cleveland Steamers play softball.

Tuesday, February 15, 2005

Small World

For the curious, you can listen to oral arguments before Pregerson, Beezer, and Tallman of the 9th Circuit in Capital Pacific v. Federal Insurance here. The defense is argued by Gilbert Jensen (a Boalt alumnus and father of my good friend Kim). I've said this to Kim before, and this sort of confirms it, but man, defending insurance companies really rubs me the wrong way. (Disclosure: My dad was in a car accident today so I'm not very pro-insurance company at the moment...especially since his claim was categorically denied from a previous accident.)

Nevertheless, the arguments are interesting to listen to if for no other reason than to kick my ass into gear to write the second draft of my Written and Oral Arguments brief.



Things that make me is David Kopel's entire post over at VC:
Gun Control in the 19th Century South: My new column for explains how the Ku Klux Klan and other racists used gun control in the antebellum South to disarm the Freedmen, paving the way for the destruction of their civil rights.

Memo to Kopel -- antebellum means BEFORE the Civil War. KKK formed AFTER the Civil War. But I'm sure the rest of the article is rivetting. [Note sarcasm].

Update: I guess someone else sent him the memo too since he now corrected the mistake. But I'm sure the rest of the article is rivetting. [Note continuing sarcasm].

Update II: At the risk of stepping into treacherous waters, I should probably explain my sarcasm. The framing of the description of the article (aside from the fact that it's a aritcle) tells me that it will probably be *cough* historically accurate *cough* for the most part, but conveniently blind to other important factors...meaning it's a piece of persuasive writing that will preach to the choir and not convert the unbelievers (yours truly among them). And that's why I'm not even going to bother reading the article. It's basically akin to someone who wants to attack Corporate America saying, "I have an article that describes how free market was used to help advance the Nazi cause" (and by implication we should never ever have something that could be used for such bad purposes, i.e. gun control, or free market, or whatever it is that you're attacking.) It's just hackery for a cause and nothing substantive.

Here are some ideas of my own. Was it gun control that was used to continue gross hate crimes in (yes that's right) Post-Civl War South or was it just the state apparatus sympathetic to inequities? Oooh, that just sounds beautiful to me. I'd like to see some of the proponents of Affirmative Action come up with that on their own. You get the idea.


Potemkin Sails Again

German film historians have restored Battleship Potemkin, the classic by director Sergei Eisenstein to the original form after years of censorship by Germans, Soviets, Brits, and the French.

I usually tend to be skeptical of restoration efforts (in part because of the great fuck up of the Parthenon in the late 19th and early 20th centuries), but this strikes me as amazing news. For those who haven't had the pleasure of an intro to film history class, this was the first movie that had a camera follow an action sequence (baby down odessa steps), whereas The Great Train Robbery was the first to have the camera pan. That scene has been copied in numerous other pics, most n0tably in The Untouchables by Brian DePalma (who put the scene in response to critics calling him's that for unoriginal eh?) And of course the various Naked Gun movies copied that in turn. So, all in all, great movie, and I'm glad it's being restored. I'm still keeping my fingers crossed for Le Voyage Dans la Lune.

Monday, February 14, 2005

The Others

In what may be an excellent example of irony, I used to be more conscious about the homeless population when I was in LA than here at Berkeley. Here it's almost a part of life. They're there...the others. They ask for spare change...sometimes not so spare, up to and including $5. They watch you carry your food back from a take out. Sometimes they hang out at the law school for a bit too long.

We, or at least I, block their existence whenever possible to give me an ease of mind (everyone lives a happy, happy life, the rain only affects you when you're walking to and from school, etc.) Then there are times when you just can't avoid it. I came home around 2:30 (home being Manville, the appropriately named University housing for graduate students) to see three UCPD squad cars parked out front. Since we're no where near frat row, I figured there must be something actually serious going on. I got into the elevator and went up to my floor when I heard LOUD noises above...screaming noises with the words, "Come get me, come on get me" intermingled. I stand there listening. Loud banging noises at elevator. Alarm sound at elevator. "Get him in there." Elevator starts going down. I go into my room.

Since that time when UCPD arrested two guys for driving a stolen car I've been partial to watching criminal law proceedings right outside my window. So I quickly took down the screen and leered. One cop goes to his car and gets anti-bacterial gel and rubs his leather gloves, then his arms. Examines arms. I couldn't see anything from here. Gets clipboard to make report. I check my e-mail and what have you for a few minutes but the noises outside attract me again. Now an apparently homeless guy was put on a stretcher and into a waiting ambulance. I say apparently only because some of the chemistry grad students look just like him. Kidding. He looked better. Kidding again. That same officer from before talked to the medic about which hospital they will be going to. I noticed the Thomas Guide and the "Essentials of Fire Fighting" sitting on the dashboard. A bit disheartening, but at least it's better to know where to get the information when you don't know then not knowing and not having anywhere to go. (Imagine ambulance driver being irritated by the guy at shotgun [spouse] because he refuses to ask for directions to the hospital). So then the two other officers emerged. One, rather loudly, remarks to the others, "I was just about to go home then this fucking shit happens." Hmmm, I'm now starting to put things together. Then just before they all left, a Manville resident on her bike arrived and approached the officers and looked like she asked about what had happened. After a few minutes she walked back to her bike saying something like, "still this isn't right." Just from the gestures I think she wasn't happy that they had arrested the guy or what have you. I'm assuming she didn't hear the yelling near the elevator. Finally, all departed.

Look, it's raining and the weather is rather gloomy. I think I can safely say at the bare minimum, half the homeless population here has some mental disorder. Combine that with water pouring on you (minus the umbrella or the nice jacket) and you get people getting into buildings. This guy happened to be a threat, or at least once the cops showed up...(is it too far fetched to think someone panicked when they saw a homeless guy sitting in the lobby so they called the cops?). As much as I like to have that conservative attitude that there's something wrong with THEM, therefore they deserve their fate, I can't help but think of those others while I enjoy my hot chocolate and daytime TV/blogging.

Happy Valentine's Day.

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Friday, February 11, 2005

Speedy Adzhemyan

About 5 hours ago I was cited by the California Highway Patrol for going 90 on I-5. During the rest of the sulky (and slower) drive, I wondered why law school doesn't teach us useful stuff like how to beat a speeding ticket. At least one of my classmates is a former Chipie. There's some consolation in that.

But I'm more concerned about psychoanalyzing the whole "getting a ticket for the first time" thing.

I'd been pulled over before. (UCPD pulled me over at UCLA when myself and four others were heading to Pink's. Two had beanies on and one had a fro, so we didn't look like the typical abercrombie wearing college guys on frat row that UCPD is used to, so they thought they'd take a look inside. Once they saw the crossword puzzle, and the radio dial tuned to the jazz station, they told me that my license plate light was out and let me be on my merry way). But this was different. How the hell did he come up behind me? I did not see him until his red and blue lights came on. I mean no headlights in the mirror until that do they do it? Well at that instant there's just a cold sweat of fear going through the speeder. You know why he's pulling you over, you're trying desparately to turn on your blinker, you watch him in the rear view to make sure he is in fact pulling you over, and you're steering the car so as not to fly into the cows at Harris Ranch. Your lips might also utter a particular word that begins with the letter F.

Then his bright shining light comes on. Great, now I can't reach for the Glock to bust a cap. More accurately, this might be the only time that a driver puts his hands on the 10 and 2 or 9 and 3...whatever the most up-to-date position may be. Why? Oh yeah, he has a gun and they seem to be a bit trigger happy. Shit is my seat belt on? Oh, yes, it is. Check plus. Ok wait for him to roll up to the driver side.

*TAP TAP TAP* on the passenger window. Naturally I'm thinking, "WHAAAAAAAAAAAAAAAAT THE EFFF IS THAT?" Oh, we're on a highway with speeding cars...some more than others apparently, and so it's dangerous to come up from that side. Ok, do I roll down the window, or unlock the door? Umm unlock the door. Flashlight shines on the original. Then comes the STATEMENT. That's right, statement, not question. "You passed me about 10 miles back at 105. I had to go 140 and weave through traffic to catch up to you. And when I caught up to you, you were going 98. Why the rush?" Me thinking, "SHIT. He's pissed. He's not even interested in playing around. Sigh. Just say no reason and move on. " I say, "No reason." License, registration, and proof of insurance. Insu-what? Kidding. I use AAA...highly recommend it to anyone.

The weirdest part is when he's running a check on the car and writing the ticket. That's not the reason why it's weird. It's weird because it's around this time that all the cars I've been zooming past and cutting off, start to drive by me. That's right, now I'm on the shoulder, with a CHP car shining it's birght lights at me and writing a ticket. Something about he who laughs last goes through my mind. So I laugh. Then you sign that damn thing, afterwhich comes the best part. "Now as you're merging, pick up speed on the shoulder." In a moment of Beavis and Buttheadesque weakness, I'm thinking, "Huh, he said speed." He kindly turns off his lights. Great, now I won't blindly cut off a Mack truck. I speed up, and go on my merry way...slowly...very very slowly...all the while wondering, how the hell did he come up behind me?

UPDATE -- Upon closer examination of the citation, I have now found further proof that the construct of race is complete BS. In the box for race the officer wrote, "O"(ther). He had my fricken says white. For an ethnic group that comes from the region that gave rise to the term Caucasian, it's a bit frustrating that I'm now "Other." I don't want to be White...I don't care if he mistakenly thought I was Latino. I do care when he looks at me, then my DL, and concludes, nah, that guy can't be white. This in the County of Fresno, home of William Saroyan and Jerry Tarkanian.

I wonder how he got behind me though.

Death of a Great Man

Arthur Miller has passed away. Like many HS students, I read "Death of a Salesman" but that's not why I admire the playwright. I'm more partial to "The Crucible" because it was written at the time of the Red Scare, and in fact as a reaction against it. To the best of my knowledge I can't think of any other play since then to really go after our society in such a way. If there is any play out there that goes after the current terror hysteria, I definitely want to know about it.

In the broader sense, I'm drawing a blank on even movies that have the effect of something like Dr. Strangelove. Though I suspect this is mostly just a reflection of my knowledge.


Thursday, February 10, 2005

Class Action Hero

Senate is set to vote on a bill that will make it easier for Federal Courts to take class action cases based on the diversity requirement. This is part of the tort reform that the Pres has been calling for, which of course is euphemism for reducing ability to sue and award of damages. What really caught my eye were the remaks by Sen. John Thune (R. SD), "Our tort system is broken. And without the necessary reforms beginning with class action lawsuits, we deny our nation not only fair and efficient access to justice, but we allow this problem to pull our economy downward."

Huh? Fair and efficient? Am I missing something here?


Wednesday, February 09, 2005

Yoo're Out of Luck

If you stayed on campus this afternoon to hear Prof. John Yoo debate James Brosnahan (attorney) regarding the War on Terrorism. As Dean Ortiz's e-mail reflects, John Yoo cancelled his appearance. Now it turns out this is because of security concerns. Well the rumor mill has refined that to something along the lines that because of death threats the UCPD has advised Yoo not to appear.

If this is indeed the case, it is probably one of the saddest chapters in this school's history. I probably disagree with Yoo's views more than anyone (see here, here, and search lexis for my letter responding to Yoo's Op/Ed). To rip off Voltaire, "I disapprove of what you say, but I will defend to the death your right to say it."

Of course Voltaire was an optimist. I hate it. I hate shouting down opposition. I hate threatening those you disagree with. I hate mischaracterizations of the opposition. Left or right, (to rip of Rodney King) can we at least agree that intolerance of opposing views hurts everyone?

UPDATE: Some of the more interesting ideas presented by Brosnahan.

Jesus was a prisoner and tortured.
Polls show Irish hate Americans more than British. Whoa!!!!
"Law students do you hear me out there, you go out there and you bang on those doors." (referring to Hamdi's lawyer who continued to pursue the habeas petition).
If the Taliban fighters did not have uniforms, how did the N. Alliance know who to shoot? (My guess, the guy on the opposite side).
In Hamdi they argued before the US Supreme Court that he was important to the national security. They lost so now they let him go.

UPDATE II: Adding fuel to the madness, apparently Borsnahan just said that UCPD contacted him worried about "chatter on the web" (huh!!!) about possible protests of the event. Brosnahan, "Then I said, 'Well that won't be anything new over at the University of California.'" I think my classmate was right in predicting that this was nothing more than a campus police overreacting to a few hot-heads...and a few hot-heads being complete idiots.


Will the real Dukeminier please stand up?

Adding to Tacitus' post below, I offer this bit from our Property text:

"...there is no apparent moral wrong in taking full advantage of the power of driving a good bargain under conditions of free competition." (p. 207)


Tuesday, February 08, 2005

Law=Justice? How quaint!

Famous law professor (and author of our Property textbook) Jesse Dukeminier (RIP, big guy), writing in the Gilbert's commercial outline on Property (hey, even law professors have to put food on the table), confirms what many of our professors have been hinting at all along: no one really believes in that justice bullcrap. It's just good PR.

Writing (on page 17, for those following along at home) about why courts favor prior possessors over subsequent possessors with regards to found property, Dukeminier notes:

"Prior possessors expect to prevail over subsequent possessors. By giving them their expectations, the law reinforces the popular belief that the law is just." [emphasis added]

So there you have it, the straight dope. Justice: it's not really something the law aspires to. It only aspires to appear just, merely to reinforce a "popular belief" that is useful for keeping the plebes in line (since if they believe it is just, they will yield to the law's dictates).

What Dukeminier wrote should surprise no one with a vague familiarity of the law, I suppose. But usually it's the kind of dirty little secret that no one talks about, like the great uncle who was sent away after he got a 12-year-old neighbor pregnant, was compulsorily lobotomized and sterilized (in no particular order), and tried to out CIA operatives from his jail cell. Not the kind of thing you'd write about in a book for young, idealistic law students, I'd venture.


French Courts to Google™: Non!

Google has suffered a number of setbacks in French courts over the past few weeks, as decisions have found GoogleAds (which targets advertisements based on search terms entered by Google users) violates the rights of the companies who actually own the trademarked search term.

First impressions: I tend to side with the authors of this article, who are skeptical of the reasoning behind the decisions. If one views shopping via a search engine like shopping in general, it doesn't seem like an abuse of trademark for Google (and its paid advertisers) to situate their products next to similar products, which is essentially what Google Ads does. To use an old economy analogy: when you go into Walgreen's and ask what aisle the Kleenex is in, Walgreen's is not violating Kleenex's trademark by pointing you to an aisle with a whole selection of facial tissues, some of which are not Kleenex. One might argue that this is different because Google makes advertisers pay for their ad to come up when that search term is entered. Two points in response: first, it is the advertisers who select the terms (though there is some dispute as to whether Google steers them towards certain terms). If absolute control over your trademark is the goal, in the long term it makesmore sense to go after the advertisers themselves (if they are indeed doing something illegal, which they probably aren't), rather than going after Google. Outside of the law, we have a saying for what Le Meridian and Vuitton are doing: "shooting the messenger". Second, outside of the Internet world, retailers like Wal-Mart, for example, routinely negotiate with producers to determine what brands/items they will stock. They will carry several brands of facial tissues, for example, and they negotiate with many producers to get the best prices. So in a sense, these producers pay Wal-Mart (in the form of a lower price) to have access to Wal-Mart's huge market of shoppers. In a similar sense, producers who pay for GoogleAds are doing much the same thing in an Internet context: they're paying for access to Google's huge user base, and at the same time they are (through the keywords) designating what aisle (category) they should be put in.

Trademark rights aren't absolute, of course, and competitors can use a brand name in many instances for comparative advertising purposes. I think the French court is just a little behind the technological curve here, fundamentally doesn't understand how Google works (nor do I really, for that matter), and so it deferred to what it saw as the status quo. But my gut tells me the decision shouldn't stand. We'll see.

Another issue: how does the French court's ruling affect Google's behavior in the US of A? On this one I just don't know, but I'd love to be informed.

In the interim, any tech-savvy readers or IP specialists are invited to weigh in with their own views on this issue in comments.

Monday, February 07, 2005

Party Time, Excellent

In honor of the cite-checking party on Wednesday, I would like to proclaim that the bestest journal at Boalt is the Berkeley Journal of International Law. And no, I'm not writing this because I suddenly found out that the co-editor-in-chief (or possibly the editors-in-chief) now read the blog. Seriously, not at all why I'd say something like that.

But it really is a great journal with AMAZING LEADERSHIP.

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Saturday, February 05, 2005

You RIAA Gotta Hold on Me

Why I hate RIAA. The gist of it:
CHARLESTON, W.Va. - Gertrude Walton was recently targeted by the recording industry in a lawsuit that accused her of illegally trading music over the Internet. But Walton died in December after a long illness, and according to her daughter, the 83-year-old hated computers.


A Recording Industry Association of America spokesman said Thursday that Walton was likely not the smittenedkitten it is searching for.

"Our evidence gathering and our subsequent legal actions all were initiated weeks and even months ago," said RIAA spokesman Jonathan Lamy. "We will now, of course, obviously dismiss this case."

Hmmm...being in Civ Pro and all this got me thinking (for once), what if it had been another innocent Walton dragged into court, but this one could not produce a government issued document to prove her innnocence? It's worth thinking about because, speaking only for myself, I have the sense that whenever there is a discussion of making it more difficult to file lawsuits the concern always shifts to the innocent plaintiff wronged by Mega Corp. This means we tend to forget the innocent defendant hauled into court by the oligarchy of Mega Corps. A bit of availability heuristic at work I detect?

Friday, February 04, 2005

Keep on keepin' on

It's not that I'm thin-skinned or anything, but when people criticize my attempts to be funny, I don't want to attempt to be funny anymore. Seriously, folks. When it's called "live blogging" don't expect Posnerian analysis. I'm just posting here to amuse my friends. If you want to parse my shit, parse on. But from now on, you'll get no reaction from me.

Wednesday, February 02, 2005

Fellowship of the what exactly?

5 second summary:

Boalt is now guaranteeing funding for at least one summer of work in the public interest/service area. Excluding judicial externships.

In the words of one of my wiser classmates, "Why the f*** should it matter that you're working for the SEC or a judge?"

Adzhemyan, 1L, concurring.

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Tuesday, February 01, 2005

Just Say No

I have been a lot of things, but never a Feminist. It's not because I don't agree with some of the pie-in-the-sky rhetoric. It's because the on-the-ground rhetoric is so very bad. For example, startling new feminist research indicates that feminists should stop being obsessed with beauty. It only took feminist researchers 150 years to come to the conclusion that women shouldn't tell other women what they should look like. This gets to my central beef about organized Feminism -- while seeming to focus entirely on widening women's choices, it has done a good job of channeling their choices. Who has the right to tell a woman she can't be a prostitute, a housewife, a porn-star, a surrogate mother? I understand the problem to be that women who find they have no other alternatives sometimes choose those professions. But how does prohibiting those professions mitigate the problem? Why can't we try to open doors in politics and business while not slamming other doors. We should not be like the early Feminists who imported their Puritanical dress prohibitions into the women's rights movements. Instead, we should reject the Puritanical prohibitions about sex professions and stop telling women what they shouldn't do. (And, yes, I realize that this is a way of telling people what they should do. But it's like the toleration paradox: the only thing tolerance can't tolerate is the intolerant.)


How Humiliating

I should probably add this as the new no. 1 random fact about me, but I think it deserves a special post on its own just to highlight how much of a dumbass I really am. So, around 8:25 AM I am walking towards the law school, early by 10 mins for Civ Pro, which Tom Loves so much, and what do I realize I'm missing? My laptop that's what. Hmmm did Armen leave it on the bus or back at home? Let's check home's somewhat easier to track down. I find it (luckily) right next to the bathroom door where I left it. I get back to school around 9, a tad too late to waltz into class. Instead I go upstairs and do a little work, only to see the following e-mails from co-blogger Tom.

You just missed your second circuit McDonalds shoutout.

And your absence was noted when everybody was looking for
the clever Lexus-using Mr. Adzhemyan.


the five minutes of class spent discussing blogging.

Dude, today was your day.

"I'm ashamed of myself that this case gives me so much
pleasure." Bundy, as to Kopmann.



CRAP!!!! I walk in at 10 for property in the same class and what's written on the board? How Appealing and SCOTUSblog. CRAP!!!! Of all the days for the Prof to mention my little e-mail to him about the McDonald's ruling and to discuss blogging (on a sidenote, I feel even more retarded since he combined the two discussions. I first learned of the ruling from Bashman...ooops, I guess the jig is up, can't pretend to be smart by passing on info from blogs).

Apparently the Prof did praise Bashman's energy. And now he knows I'm either sleep deprived or don't give a shit about his class and rely on blogs to get the info down.

The Unpeakable

My name is Tom Fletcher, and I love Civil Procedure.


Wow. I feel liberated.