Torture Foiled No Plots (probably)

The Washington Post, by no means a bastion of liberal ideals, has a great article on the ineffectiveness (and indeed counterproductiveness) of using torture as means of obtaining intelligence. Dan Froomkin has a follow-up editorial that also makes for good reading.

The summary of both is: 1) it's impossible to predict when people have information that only torture will produce, 2) people will say anything, truthful or not, to stopped being tortured, and 3) following these "leads" is really expensive, consuming resources that could be used elsewhere. In the case of Abu Zubaida, the poster-child for the rationale of using torture, all three apply.

Everyone knows where I stand on this, so I'll largely notch this up under the "no duh" category, and leave the commentary up to the commentators.

Update: at the request of Patrick, I would like to emphasize that these articles only concern the effectiveness (and relatedly, the necessity) of torture, and not the legality of it.

Emergency Notice: Decreasing Procrastination Workshop . . . Tomorrow

Hat tip to Matt in the comments below:

While we're on awesome emails today, how about James Lyda? "DECREASING PROCRASTINATION WORKSHOP - Tomorrow" - classic. I think I saw that in a Family Guy once.

Someone Swung the Sensible Stick!

Great news from BB via email today:

• After the 2009-2010 academic year, all 1L students will take five units of Civ Pro instead of four units (thereby eliminating the need for Civ Pro II).
• Beginning with the class of 2012, students will be required to take 220.6 Constitutional Law, a four-unit class, to graduate.  While they do not have to take it in the first year, but 1Ls will be given priority to get into 220.6 in the second semester of their first year. 
• Beginning now, if there are less than five students registered for a class by June 1, the class will be canceled.  Similarly, if a class has less than 10 students registered by the Friday of the first week of classes, it will be canceled.
  

Anyone who reads this blog regularly knows how much I approve of each of these changes. Civil Procedure and the Constitution are absolutely fundamental to litigation. And litigation is absolutely fundamental to our legal system. Sure, you get something from a curriculum without them. It's not necessarily an education, though.

The full email is posted in the comments.

Ten Feet Off of Beale

According to the NY Times, Glenn Beck is the next big thing. Crazy is in this year! Jon Stewart and Stephen Colbert have been regularly skewering Mr. Beck (to hilarious effect), but it's my turn. From the Times:

In an interview, Mr. Beck, who recently rewatched the 1976 film “Network,” said he identified with the character of Howard Beale, the unhinged TV news anchorman who declares on the air that he is “mad as hell.”

“I think that’s the way people feel,” Mr. Beck said. “That’s the way I feel.”

Now, I have tried to refrain from mocking Glenn Beck. I mean, at this point, it's kind of cliche. I stood by and watched while he cried "socialism" where none exists. I stood back and watched while he just plain cried. But I will not stand back and let him lay claim to a character he clearly does not understand. No, this time I'm mad as Hell, and I'm not gonna take it anymore.

Beck claims he recently watched Network. While I don't see how anyone could enjoy that film and still work for Fox News (or any 24-hour network, really), I will trust that he actually saw it. This means he sat there and watched Howard Beale's "mad as Hell" speech, which he probably found inspiring (as the viewer is meant to). But he must have either fallen asleep, turned off his brain, or become too emotional to pay attention to what came next, because everyone who went to college and saw that movie knows that Beale becomes a parody of himself--selling out to the same corrupt establishment he first railed against. The network gives him his own show, in which he churns out daily sermons--each crazier than the last--to viewers who fastidiously consume them, as if they can make a difference by simply watching. Beale and his viewers are two sides of the same delusional coin, each sure that it matters, while those truly in charge slyly slide it into their pocket.

So what does Beck mean when he says he relates to Howard Beale? There are two options: one makes him an idiot, the other an evil genius. Either Beck does not understand Beale at all, and somehow considers the character a legitimate crusader for truth; or Beck understands Beale's crazed, corrupt self-delusion perfectly, and has correctly identified himself as its heir.

What do you think?

UPDATE: Stephen Colbert wins.

No Noose Is Good News

Via ATL, there are reports of outside firms that are not at the top of the Vault rankings opening up shops here in L.A. to capitalize on the lawyers now available on the market. Just a few weeks ago, I wrote, "Someone asked if this presents firms 'lower' down the food-chain with an opportunity to upgrade to say former L&W or Orrick associates. I did some thinking on this and asked around a bit. Tentatively, I don't think so."

The latest news appears to directly contradict that, which is fine by me. At least there are now signs that the legal job market is not completely lifeless. I hope this augurs well for any Boalties (and anyone else) out there affected by this mess.

Adventures in the Twitscape

God grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference. -- The Serenity Prayer

Some things, I've learned, are just going to happen. No matter what. And the less you kid yourself about their inevitability, the happier you'll be. For example, yesterday I purchased a Snuggie. I tried to resist this for a long time. I said to myself, "Self, that thing looks ridiculous! If anyone ever saw you wearing that, you'd die friendless and destitute! The Snuggie is not your friend, no matter how warm and functional!" But every time I saw the commercials, I'd hear a tiny voice speaking an undeniable truth: a blanket with sleeves for the bargain basement price of $14.95 can only exist so long before it must be in my living room. Plus, it comes with a free booklight!

In this spirit, I finally gave up and hit the fast-forward button on something else that is bound to happen to all of us. I joined Twitter.

Twitter, for those who still don't know, is sort of a global version of the Facebook newsfeed. Users post 140-character answers (disgustingly referred to as "tweets") to one simple question: "What are you doing?" Separating it from Facebook is the fact that, along with your friends, many famous people tweet (including members of Congress). In addition to posting your own tweets (I don't think I'll ever get used to that word), you can subscribe to as many other feeds as you like, keeping you informed about the myriad banalities of countless lives, all in two-sentence increments.

For example, when I joined, I became a "follower" of Warren Ellis (one of my favorite writers), Alyson Hannigan (of Buffy the Vampire Slayer, y'all), and Senator Barbara Boxer. I quickly began receiving information about their lives. It was Alyson's birthday; Warren Ellis really likes The Pogues; and Senator Boxer thinks the AIG bonuses are "disgraceful." This was kind of exciting! Although the information wasn't exactly useful, I now had a window into the real lives of people I had previously encountered only in media.

But it didn't stop there. Shortly after I became a follower of Alyson Hannigan, I received an e-mail saying she was now following my Twitter. This blew my mind. The redheaded witch in the television, on whom I'd had a crush since 7th grade, was now allegedly reading 140-character summaries of my stupid life! I couldn't believe it! No way would this moderately famous person bother to read anything I posted. I decided to test her. I posted a tweet (grr) specifically wishing Ms. Hannigan a happy birthday and thanking her for following my Twitter. Low and behold, she responded on her own "twitscape" (Jon Stewart coined that one, and we're keeping it) with a message to me: "@[myusername], you're welcome!"

I share this story not just to lose your respect, but also to illustrate the strange and possibly transformative effect Twitter could have on how we communicate. The cool thing about Twitter is it does seem to do a better job of connecting people than Facebook. Sure, you can become a "fan" of Barack Obama on facebook and get his weekly youtube address in your e-mail. But Twitter allows for greater possibility of actual back and forth between the masses and public figures--be they Buffy alums, journalists, or US Senators. It works because tweeting takes so little effort. You can read dozens of tweets in a minute, and respond in just a few seconds. Even public figures, who get flooded with tweets (@#$%) each day, can read and respond to many of them in the time it would take to compose a single e-mail.

But after two days, I'm finding this feature is also Twitter's greatest weakness. How much can anyone really say in 140 characters? Does it help me to know that Barbara Boxer is disgusted with the AIG bonuses, if she can't tell me why? Is there any possibility my conversations with Alyson Hannigan will ever be more than one-line deep? Striking a balance between convenience and usefulness is going to be Twitter's great challenge. If it manages find the right formula, it could prove a truly interesting realm of public speech. If not, it's likely to remain the domain of nerds stalking their television crushes.

One thing is certain: you're all going to join. Just give up.

UPDATE: Twitter either saved someone's life or got a student expelled--possibly both, but probably just the latter. Still, it's one of those "Wow, internet!" stories. I love those.

Latest BCS Busters? The U.S. Senate!

Congress has been embattled for a long time now. They could use a win, and I can't think of a bigger one than bringing down the scourge of American sports. (Ok, fixing the economy might compare.)

Seriously, is anyone left who still likes the BCS? Quiet down, state of Florida. Look, I admit I'm biased. I'm a fan of a "mid-major" team. (Go UTES!) But I don't think I'm the only one who has realized that term has lost most of its meaning. Yeah, some conferences are traditional powerhouses. But it's changing every year. The ACC, the Big East--they're not what they used to be. And some conferences, like my own dear Mountain West, are getting stronger. Is it fair that we distinguish between them based on their reputation when the BCS was formed? How long can that system continue?

In fact, conference competition isn't really the point (although I expect it's much of what the commenters will debate). The point is that every team in America should have a chance to be national champion. Just a chance. It doesn't have to be easy; in fact, it shouldn't be. But right now, the only realistic way to be considered for a national title is to come from a BCS conference, and that sucks. If anyone disagrees with that assessment, I'll refer you to my friends on the only undefeated team last year. They won thirteen games and beat four ranked teams, finishing their season with the merciless slaughter of #4 Alabama on their own turf, and were never even considered for the title.

When a bunch of big, powerful organizations get together and conspire to keep out the little guy, that's called a monopoly, and it's illegal. I'm hoping congress recognizes the one strangling America's favorite pastime.

The Very Idea of a Bird

The very idea of a bird is a symbol and a suggestion to the poet. A bird seems to be at the top of the scale, so vehement and intense his life . . . how many suggestions to the poet in their flight and song!

- John Burroughs

. . . and perhaps also a symbol and suggestion to David Hackbart of Pennsylvania, who was inspired to give Sergeant Brian Elledge the finger moments before the Pittsburgh police officer pulled him over. As you probably guessed, the finger and the traffic stop were highly related, but luckily for Mr. Hackbart, the finger turns out to be a constitutionally protected speech act.

Memorandum here, discussion here. Just don't get carried away -- not every gesture is a protected gesture.

Weekend at Bernie's Sentencing

I don't want to distract from the post below, but this is too rich for me to ignore. Here is a PDF of victim impact e-mails compiled by the US Attorney's office at the SDNY to present to the judge during Bernie Madoff's sentencing. (H/T: TPM). Some of the "highlights" from these e-mails appear in the comments.

A Tragic Weekend in Oakland

A commentator below asks for a thread on the shooting of four Oakland Police officers by a parolee over the weekend.

Undoubtedly views will vary. "How outraged would we be," someone will ask in the comments, "if the police had killed three parolees this weekend?" "Why is it that we suddenly care" they will ask, "when an officer dies?"

Those kinds of questions miss the the point. Four public servants left their homes fully expecting to return at the end of the day, and they did not. Granting credence to anger and frustration with our law enforcement system, this is still a tragedy. My thoughts and condolences go to to the people whose their friends, husbands, and fathers were taken from them last weekend.

My President Is 'Down to Earth'

Michelle Obama will soon plant a vegetable garden on the south lawn at the White House.

As a commentator to the article notes, what a fine idea. Even finer is what it represents: this White House is making a gentle but firm gesture against industrialization of our food supply, and a simple but unmistakable bow to its own frailty; after all, it's pretty tough to be cocky when you grow you own vegetables. Frailty may be a scary, humbling, and terribly old fashioned observation, but it's the kind of scary, humbling, and terribly old fashioned world in which I want to live.

So, "thank you" to the Obamas -- I'll take a first family that weeds over one that clears brush, any day.

The Bonus Tax

The New York Times reports that the House has passed a bill to impose a 90% tax on bonuses that people receive from firms which have accepted more than 5 billion in bailout money. As far as I'm concerned, it's about time.

Here are the main arguments from the executives opposing the bonus tax.

1) You're punishing the little people, like the secretary receiving a $5000 bonus.

My answer to that? The tax only affects people in households making more than $250,000 a year. First off, I don't know any secretaries who make that much money. Do you? And even if said secretary is making that much, or is married to someone so that their joint income reaches that level, he or she hardly qualifies as "little people." $250,000 a year is a lot. The median wage in the U.S. ranges from about $32,000 a year in Mississippi to $50,000 a year in Connecticut.

2) If you tax bonuses that high, all the top talent will leave.

So what? All that the top talent has done so far is get us into this mess, then accept multi-million dollar bonuses and slink away. Maybe it's time for some younger, fresher blood to come in. Furthermore, the whole idea that you need to pay people an extraordinary amount of money is flawed. Look at teachers. There are some great teachers out there, who change lives. There are mediocre teachers, whose classes you sit through without learning much. There are awful teachers, the ones who make you want to skip class. They all receive roughly the same amount of money, sans bonus in many cases. And they're only getting about $40,000 a year in most cases. So - do we really need to be paying our corporate executives 10 or 15 million dollars a year?

3) People have already spent the money.

Then maybe they need to learn how to budget better, and live within their means. This may sound harsh, but I think that most of this country suffers from an inability to manage money. We buy houses and cars that we can barely afford because we feel the need to keep up with our neighbors. We take on over $100,000 in debt to attend law school with the expectation of making enough money after we graduate to pay it back (and I'm guilty of this too). There's being prudent - knowing what kind of debt you can take on and how you can pay it back - and being imprudent - buying a house whose mortgage you can't afford unless home prices continue to increase exponentially for the next ten years. Besides, the IRS has a payment plan.

You are, of course, free to disagree with me on any or all of these points, but I stand by my conviction that corporate culture needs to change, and the bonus tax is a great way to do this. And for the record, I don't believe in excessive law firm salary either - I think if we all started at $30,000 or $40,000 a year, whether in the public or private sector, lawyers would be, as a whole, more honest and more dedicated. They'd be doing the work because they wanted to, not because of the money.

No Pac-10 Love from the Commander-in-Chief

ESPN's got a piece (here) on the "First Bracket" -- Obama's Tourney picks.

Not only does Mr. President take Maryland over our very own Golden Bears (probably because of the Terp's vicinity to D.C.), he doesn't have much Pac-10 love at all. The only Pac-10 team he's got moving on is 4-seed Washington. But then he's got Purdue knocking them off in the second round.

He explains this decision because he wants to encourage the Oregon State Beavers next season (Obama's brother-in-law is the Beavers' coach). I guess if the Pac-10 gets thrashed in the tournament, that makes the Beavers feel like they have a chance next season. But if the Pac-10 gets thrashed, doesn't that make it harder for any Pac-10 team, including O State, to get into the Dance next year?

So, Obama is the new Decider. For the sake of my bracket's chances (and Pac-10 respect), I hope this is one decision he's wrong on.

Oh and the Presidential Pick? UNC over Louisville. I think I agree.

----
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Updates:
- Coach K thinks "the economy is something that [President Obama] should focus on, probably more than the brackets." This is probably just a comment taken a little out of context given the fact that the President didn't pick Duke to take the tourney.

- Also, here's a link to check the Presidential Picks.

Ninth Circuit Going to the Liu?

Law students generally don't get a chance to see the Recorder, so I thought I'd point out an article that may be of interest (it is available online too, but for subscribers only [EDIT: Patrick provides a link]). The Ninth Circuit currently has two vacancies--one seat transplanted from the D.C. Circuit (which is considered a "Calfornia slot"), and a second that is actually a disputed seat between California and Idaho.

So whose name is the first brought up by the Recorder as a "likely aspirant" for the vacancy? None other than Boalt's own Goodwin Liu. Could Prof. Liu really become a Ninth Circuit judge at the tender age of 38? I don't think anyone doubts his intellectual ability, and he certainly has the credentials. Having been in a seminar of his a few years back, I can vouch for his intellectual curiosity, willingness to countenance all sides of a debate, and a patient temperament well suited to the judiciary (he would be a welcome balance to fiery personalities like Kozinski or Reinhardt).

This begs the question, though, as to whether he could be confirmed. It is not just that Prof. Liu has very progressive views on controversial topics (including race and education)--it's that he has written widely on these views, and has often been quoted in newspapers, legal publications and on television. He also testified against the confirmation of Justice Alito. While I believe Prof. Liu would be a cautious and thoughtful judge, it is easy to imagine conservatives making an example out of someone with his track record and paper trail.

Which is why, if Liu truly does want to be a judge, now may be the time to go for it. Despite (or maybe because of) the current economic climate, Democrats' political capital will never be higher, and so now would seem to be Liu's best chance for confirmation. Not to mention that if he becomes a judge in the next couple years, his government pension will kick in when he is only in his mid-fifties.

The Recorder does point out that current district court judges are the most likely to be appointed, so it is difficult to say at this point whether Liu truly is a potential candidate. Irregardless, I hope Liu stays at Boalt, and all the better if it is in the same role as Prof./Judge Fletcher.

What About the 1L's?

This thread is highly related to the one immediately below, but probably worth keeping distinct. It solicits alumni who are on or have an inside angle with their firm's hiring committee, and asks: what about the 1L's? How, if at all, do you think your firm will adjust its hiring plan for this fall? How do you think 2009's 2L applicants to your firm will fare in comparison to 2L's from 2008?

There is a lot of gloom-and-doom information out there, and the last six months on ATL and related sites have seen an incredible development of what I suppose is called "conventional wisdom." While conventional wisdom (a phrase which may or may not be an oxymoron) is useful, I'd like to add something concrete to the mountains of speculation, but tugging on the coats of our alumni for a moment.

I think alumi thoughts would be particularly helpful to the class of 2011. The 1L's have been through a lot in the last year: twelve months ago they were still deciding to go to law school, six months ago they were figuring out what a "holding" is and whether they should join a journal, two months ago they were in full-panic mode for Spring OCIP and PIPS Day. Understandably, for each of these decisions they relied heavily on others' advice.

Fall OCIP is a similarly monumental and advice-driven affair. It's close enough that at least some firms must be thinking about their needs -- if you have the ability, please consider giving some much-needed context to the class of 2011's next staggering and totally foreign decision.

L'Affair Layoffs

Like I said, I have some thoughts running through my head on this topic that I'll be exploring in greater detail. One that's troubling me is the "Cravathization" of firms. I think I may have read a while back somewhere (possibly on Adam Smith, Esq.?) about how a lot of firms mimicked the Cravath model of promising the top talent at top rates. This resulted in all sorts of absurdities, such as a bunch of firms all raising salaries because one of them did. Under the Cravath model, there is no room to be seen as "below market." Now that there is no market to speak of, those decisions are coming back to haunt the very same firms. I have Orrick in my crosshair. They led the Westcoast rise to 160 and now lead the worldwide fall of the 300. Why? How was a market downturn not foreseeable in 2007?

Consider this an open thread on this broad topic.

Edit: Folding McWho's open thread on this into this post.

Jon Stewart pwns Jim Cramer

If you missed Daily Show Thursday night (and have been living under a rock since then), then you missed Jon Stewart at his best. He dominated CNBC's Jim Cramer in a well-prepared and bitingly sarcastic interview. The whole interview is available in three parts here.

Personally, I think Cramer acted like a dog with his tail between his legs in Stewart's presence. He even started off the interview kissing Stewart's ass, stating how he was a "big fan of the show."

Stewart had some good points regarding the subprime mortgage crisis and who should be to blame for putting us all in the situation we're all in now. Namely, the a-holes who tried to gamble on packaging high risks loans all together instead of diversifying with lower risk loans. He also caught Cramer in some flat-out lies. Seriously, didn't someone warn him that Stewart would be coming at him with guns blazing? I feel like CNBC just told Cramer to go on the Daily Show, kiss ass, and hope for forgiveness from Stewart.

This interview is great in that (1) it proves that Daily Show is not just dependent on being the comedic counterpoint to the Bush Administration and that it can still be funny and relevant in the Obama Nirvana; and (2) it shows just how powerful Jon Stewart has made the Daily Show. I mean, does anyone remember the Daily Show with Craig Kilborn?

Stewart's smack down has apparently led to a ratings dip for CNBC. Interestingly though, it seems to have led to a slight rise in college-age kids (who likely get all their news from the Daily Show) tuning into Cramer's Mad Money. Even more interestingly, it appears that MSNBC producers were asked to not highlight the interview on Friday. Because, yeah, let's just forget it happened and maybe it will go away.

Less Than 3 Weeks to Make Big Purchases!!!

Thanks to the incompetent individuals running our state, sales tax will increase significantly on 4/1/09.

Here's a web page where you can confirm rates by city and county for your upcoming estimates.

Berkeley residents will soon be paying a whopping 9.75% sales tax.

Is it wrong for me to wonder if this increase would still have occurred if we passed the Governator's Prop 76 in 2005? You think anyone who fought to defeat it (Democrats, public unions) regrets it now?

Forgive Me, Uncle Sam, For I Have Not Sinned

There's been some talk about student debt forgiveness as a way to stimulate the economy. (See ATL, University Business, and The Huffington Post.) My first thought was, "Yeah, right." My second thought was, "Please God, make this happen!" I'm no economist, but, at first glance, forgiving student debt makes about as much sense as any other piece of the bailout. Moreover, it seems much more politically palatable than bailing out the auto industry, bad mortgages, or wall street. Students, after all, didn't make questionable (read: bad) decisions that got them into this mess; they relied on a system that failed. Besides, everyone loves education!

So I guess the real question is, would this work? And what would you do if all of your debt was forgiven tomorrow?

Two Cautionary Notes

The weather has been beautiful, the DOW has been up for over fifty hours, and spring break is right around the corner. Not to be a debbie downer or anything, but I'd like to share two tidbits from my afternoon.

First, this list from The Shark. It is a compendium of information from various law blogs about layoffs and shortening of summer programs. The list is disturbingly long, but The Shark has made it handily alphabetized and searchable via your browser's toolbar, so you should be able to cut straight to your firm and get right down to chewing your fingernails and devouring comfort food.

If you're still feeling cheerful, The Shark has also has an ongoing feature of 3L's who are jobless and hunting.

Second, let's not gloat about the recent spike in the DOW, okay? I sat through part of a conversation today wherein two people seemed to genuinely believe that the worst is behind us. They explained how in theory, this kind of jump is "all it takes." To which I reply (quoting America's greatest aphorist): "In theory there is no difference between theory and practice. In practice there is."

3Ls Shifting Their Sleepless Nights to 1Ls?

A gem exists in the ATL comments to the Morgan Lewis layoff post.

In order to avoid revoking 3L offers, ML decided to defer their ENTIRE incoming class to the following year.

But what of the 2L summers? ML sent each of them a "reassuring" email today as well. 2Ls who receive an offer at the end of the summer will not be allowed to start until the fall of 2011.

So I ask: what of the current 1Ls? Apparently ML isn't going to hire any summers during OCIP in the fall (and will not have a summer class in 2010)?

Interesting times we live in (and by "interesting" I mean "shitty")...

Did Cardozo Make That Up?

You will study the wisdom of the past. For in a wilderness of conflicting counsels, a trail has been blazed. You will study the life of mankind, for this is the life you must order, and to order with wisdom, must know. You will study the precepts of justice, for these are the truth that through you shall come to their hour of triumph. Here is the high emprise, the fine endeavor, the splendid possibility of achievement, to which I summon and bid you welcome.

The Benjamin Cardozo quotation on the east side of Boalt Hall is so much easier to read now that they've whacked the trees and pressure-washed the lettering. I could make it out even in the dark as I rolled by tonight on a little run. Cardozo's words, while inspiring, were not inspiring enough to inject any vigor into the pathetic, book reading blob I have become, but they were enough to remind me of something I've wondered before: " 'Emprise'? Is that a word, or something Cardozo just sort of made up? I wouldn't put that past him . . . "

For those who have wondered, "emprise" is indeed a word. Or at least, it used to be. "Emprise" is not found in the New Oxford American Dictionary nor Webster's College Dictionary, but it is in the 1989 OED (although the most modern citations are circa late-1800's). An "emprise" is "[a]n undertaking, enterprise; esp. one of an adventurous or chivalrous nature."

Not that you were on the edge of your seat . . . but there you have it.

Sue Yoo

There is an interesting article about a lawsuit against John Yoo, and how Obama might respond, over at Politico.

Logical Error Redux

A while back I posted something that combined the two loves in my life: politics and common errors in logical reasoning.

Today's XKCD neatly sums up the point:

What Is . . . a Boaltie

Tim McMahon (Boalt 2008) was on Jeopardy last night, and won. He'll be on again tonight. (For those who don't know, this is actually part of a fine Boalt tradition, dating back to 1993.) Best of luck to Tim -- we may win something today after all.

Pre-Gaming the Prop. 8 Arguments

Tomorrow, the California Supreme Court will hear arguments in the Proposition 8 cases. There is much to talk about, but the critical legal distinction turns on the technical question of whether the initiative worked a "revision" or an "amendment" to the California Constitution.

A revision occurs when the "principles that underlie" the California Constitution are changed; an amendment, by contrast, furthers or better implements existing principles without changing them. (If that distinction seems artificial or contrived, it's probably because it is.)  Characterizing Proposition 8 as a revision is a win for the Petitioners, because revisions require approval of the state legislature -- something that has not happened here.  Characterization as an amendment, on the other hand, would mean Proposition 8 stands.

Here is a cursory rundown of the arguments, based on the briefing:

The Petitioners will argue that Proposition 8 was a revision (and not an amendment) because it divested the California legislature and the judiciary of the ability to safeguard the rights of a minority group. They will argue the initiative improperly targets a suspect class, and will attempt to cast the debate in terms of a change to the California Constitution's interest in protecting a marginalized and vulnerable population.

The other side will argue that Proposition 8 was an amendment (and not a revision) because the structure of California government has not changed. They will argue the initiative expresses the will of the people, and will attempt to cast the debate in terms of democracy rule.

My sense (sadly) is that the Petitioner's revision/amendment argument is an uphill battle, and that what is at stake here are the marriages already in place. If the Court determines that Proposition 8 was an amendment, it will confront the much thornier question of how to treat the existing 18,000 same-sex marriages. Petitioners will argue that the existing marriages must remain valid, because to repudiate them would be to enact an ex post facto law, would violate due process, and would amount to a state-compelled divorce. The other side will argue that Proposition 8's text and mandate are clear: same sex marriage is no longer recognized in California, the people have spoken, and the inquiry need go no further.

I have opinions about where the Court will come down on the first question (I think they'll call it an amendment, not a revision) but I'm at a loss with respect to the existing marriages. I doubt I'm the only one confused about the second question, but perhaps the oral arguments will illuminate.

Lastly, there is a political angle: which Justices will vote which way, and why? That's out of my league, but you can find some discussion here. You can also watch the arguments in real time here. My understanding is that the arguments will also be broadcast on a projector in Café Zeb Room 107 tomorrow from 9:00 - 12:00 p.m. Perhaps I'll see you there.

The Top Ten List that Firms Don't Want to Make

The Am Law 100 firms who have laid off the highest percentage of their associates (as counted from September 30, 2008 to March 4, 2008).

See here.

Good v. Evil

Tonight, at the ripe hour of 11 P.M., the immensely successful, fantastically good looking Bad News Bearisters will entertain the challenge of the somewhat mediocre, substantially less good looking The Softball Team Formerly Known as Boalt Hall.

Yes, you guessed it (or at least I hope you did from the second team's name): intramural softball. Come witness the lowly 2Ls try to take on the (former) champions, as the Bad News Bearisters demonstrate their athletic and, frankly, genetic superiority.

In the unfortunate event you cannot spare an hour between 11 and 12 this evening to stand in the rain and cheer for the Bearisters (or boo the 2Ls), feel free to elaborate on why you feel the Bad News Bearisters will win tonight.

The Killing Floor*

In light of the slaughterhouse that appears to constitute today's legal market (add OMM to the list?), I have a few more thoughts on the matter since the previous post.

The L&W deferral appears to be directed at LA/NY. Other offices, you need something like a prospectus outlining your goals for the time off (so is that a "no" to "catching up on 'Lost,' '30 Rock,' 'Arrested Development,' and 'The Wire?'").

Someone asked if this presents firms "lower" down the food-chain with an opportunity to upgrade to say former L&W or Orrick associates. I did some thinking on this and asked around a bit. Tentatively, I don't think so. Some of the explanations offered, which make sense to me, are that these smaller shops tend to have the type of clients where having the top talent will not necessarily allow you to increase your billing rates. So there is not much of an up-tick. On the other hand, they are used to working with their associates who by their third year are heading into court and managing their own cases. The laid off L&W associate? Lucky to have taken a depo. Apart from that, the layoffs appear to be transactional heavy. And I just cannot see anyone hiring any transactional lawyers--even if you get rid of your own crop. Bottom line, a lot of small shops are getting tons of resumes and just tossing them aside.

A commenter asked (starting at 3/2/09 at 10:12) why SF/Cal? The response to McWho is right. Sorry McWho but it's not just the concentration of a few banks in SF (and BofA hasn't really been in SF for about 12 years now). The bigger problem is the dependence of emerging techies on available credit. This generated a lot of legal work ranging from VC agreements, IPOs, and lots of other fancy stuff that I do not understand. None of that is happening right now. Can you imagine if Google was trying to raise money to get off the ground today? We'd all be using Lycos!

*"Don't let the name fool you, it's not really a floor at all- it's more a series of grates that allow loose meat to fall through."

April Showers Bring May . . .

. . . taco trucks?

That's what I saw walking into Boalt this morning: a half dozen construction workers taking a break from the rainy clay mine in the courtyard to enjoy that taco-y goodness. I love Boalt Hall.

Please. Just Tell Me The Stinking Rule

Since hearing this simple question in conversation last week, it has done nothing but bug me: who calls whom when a phone conversation is cut off?

Just like everyone else, when a call is dropped I want to do the "right" thing, which is to say I want to do what the person at the other end of the line expects me to do. Of course, they're trying to do what they think I expect, and so the whole thing complicates quickly.

I need a convention (is there one? do I just not know about it?): the caller calls the callee, or whatever. Actually, maybe the caller should return the call because the caller is most likely to have the relevant phone numbers. Of course, cell phones generally make that a moot point.

On the other hand perhaps the callee should return the call, because the caller has already put some effort into the conversation and it's now the callee's turn. But that seems odd in the context of, say, a call to schedule an appointment at a law firm or doctor's office. You wouldn't expect the receptionist to return your call, would you?

Or, the person who spoke last could call . . . except it's often difficult to tell when a conversation broke off, and therefore who was speaking. The person who was not speaking when the call was dropped could return the call . . . but the call might not go through because other person may still be blabbing away.

What a mess. What a trivial little mess. Help.

Player needed

Hi peeps,

We need one (maybe two if someone flakes out) more participant for a Boalt fantasy baseball keeper league we're setting up. Ideally this league would perpetuate itself, and while you wouldn't be on the hook for more than a year, long-term interest is preferable. We're in the midst of finalize the rules, but rest assured, they will be awesome.

The buy-in is $100, and we'll pay out to the top 2-3 placings.

The requirements:
1. You can't be a douche.
2. You reasonably expect that you will take the league seriously.

Shoot me an email at toney_the_ninja@yahoo.com if you're interested (yeah, that's my fake address, so feel free to spam away).