Obama's DOJ Clears Yoo & Bybee

This is news. Newsweek reports that the DOJ is on the verge of releasing a finalized report of its investigation into Bush administration OLC attorneys who researched and reported on legal questions ranging from enhanced interrogation to wiretapping to all sorts of mundane topics about which I have no clue because, of course, they are not the subjects of constant and viscous vicious attacks. More specifically, the report is expected to declare that Professor Yoo and Judge Bybee committed no professional misconduct, although it does question their judgment. In other words, all bark and no bite.

Perhaps the report means they did not commit any egregious wrongs. Perhaps the report means the Obama administration has embraced the notion of a powerful executive. Query to the Berkeley left: which conclusion displeases you more?

You've Been Hit By, You've Been Struck By . . . A Shameless Plug!

The Berkeley Journal of Criminal Law is hosting what should be a legendary benefit party tonight, open to all Boalt students and presumably any sketchy graduates who want to show up. The "Smooth Criminal" Benefit and Costume Party will be at 1345 Arch Street in Berkeley at 8:00. It's $5 to get in and get access to an OPEN BAR, with all the proceeds going to Advocates for Youth Justice, which we all know does great work for young people in our community.

Please come dressed as your favorite infamous criminal. I plan to show up as this guy.

The Only Thing Between Me and Your Throat is the Constitution

Above the Law is running this, too, but it is too startling to let go without a post.

Those who watched the State of the Union tonight saw something remarkable -- something you wouldn't pick up on just by reading the transcript of Obama's words regarding Citizens United:

It’s time to put strict limits on the contributions that lobbyists give to candidates for federal office. With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.

[Pause for applause.]

I don’t think that American elections should be bankrolled by America’s most powerful interests, or worse by foreign enemies; they should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps correct … some of these problems.

Sounds pretty deferential, no? Now, watch the video and listen to the President's intonation:



Is that not the same tone of voice he uses to tell Sasha and Malia they can't eat all their Halloween candy on the first night?

The clip left me feeling incredibly uncomfortable. Watch Justice Alito straighten, shake his head, and then say "not true." Watch as he continues to shake his head while the audience gives a standing ovation, towering over the justices as they quietly sit and take it. If you have read the comments on the thread below, you know what I think about the decision. I think it was rightly decided as a matter of the First Amendment, but wrongly decided as a matter of stare decisis. The Roberts Court, as far as I am concerned, just lost any legitimate claim to deference or judicial restraint. I realize that is not why the crowd took to its feet and that's not why most people are disturbed by the Court's decision, but nevertheless, I find that clip gratifying and grating at the same time.

. . . not, "with all due deference to the Court's reasoning," and not "with all due deference to the Justices sitting before me," and not "with all due deference to opposing views" . . . but "with all due deference to the separation of powers." The only thing more blunt woud be if he had said, "you lie."

iPad (and so will you)

At 10 AM this morning, Apple debuted its long rumored "tablet" mobile device, and with it, a limitless number of easy menstruation jokes. The consensus I'm hearing around Boalt today seems to be that it's underwhelming, primarily because it doesn't do anything you can't do with an iPhone or MacBook.

My response: of course it can't! Why? Because the iPhone and MacBook exist, and this doesn't yet. No software developer is going to create a program that takes full advantage of a large full-color touch-screen with good processing speed when no such device is even on the market. So, for now, we have a middle-of-the-road platform that does most of the things its cousins can do, but hasn't yet come into its own. That doesn't mean it won't.

It's just a matter of time before third party developers come up with all kinds of really cool, super functional programs for this new medium that we, in our limited two-device worldview, cannot even imagine yet. We saw one example today, with the MLB.com App that Jobs said was developed in just a couple of weeks. It allows you to watch LIVE HD BASEBALL with graphical overlays showing stats, links to other games, etc. You can do things like touch a player's image and reveal a baseball card showing his stats and bio, and I don't even know what else. My point is, once you combine touch-screen and full-color on a large enough screen that you will actually use it to look at things, a whole new world of possibilities opens up, and it's a fallacy to say that's not the case just because we haven't yet had access to that world.

My prediction: five years from now, you won't just want the iPad, you'll need it--and not just during your ePeriod. (Sorry.)

Unrelated Thoughts - Two of 'Em

My news feed is alive this morning with reports that Avatar has passed Titanic in terms of gross revenue (you'll have to find them yourself because I decline to dignify them with a link). Whoop-dee-freaking doo. Have we forgotten how inflation works? Properly adjusted, Avatar isn't even close to Titanic -- in fact, Avatar is not even in the top twenties. Don't get me wrong, I loved the movie . . . just not to the point of misrepresenting it.

Second, and more legitimately, SCOTUS blog is advertising to law students a summer internship slot. This may be part of a general trend toward legitimizing the blog (as though it needed it) and making it more institutional. If you are interested in the Court, American History, the internet, or really smart and inspiring people (@ 4:55), this is an incredible opportunity. I would be insanely jealous of any Boaltie who lands this one.

7th Circuit Upholds Prison Ban of D&D

The nerds can't catch a break:

In an opinion issued on Monday, a three-judge panel of the Chicago-based Seventh Circuit Court of Appeals hexed a lawsuit challenging a ban on the game of Dungeons & Dragons by the Waupun Correctional Institution in Wisconsin.

The suit was brought by a prisoner, Kevin T. Singer, who argued that his First Amendment and 14th Amendment rights were violated by the prison’s decision to ban the game and confiscate his books and other materials — including a 96-page handwritten manuscript he had created for the game.

The Court determined that playing D&D could lead to enhanced gang behavior and violent escape attempts. This might be true for any actual gang members who were exposed to D&D nerds, but I doubt D&D would meaningfully contribute to this sort of behavior.

Yeah, There's an App For That

Perhaps because I've been griping lately about the expense of bar exam and bar prep courses, people have been sending me links like this one. The link, of course, describes the new $1,000 iPhone bar preparation application. (Other coverage here, ATL coverage here.) You can find the app here -- tread gingerly if you have enabled one click ordering!

The implication, though never expessly stated by the developer, is that this application is functionally identical to BarBri's $4,000 iPod program, but at a quarter the price. I like the idea of sticking it to BarBri at least as much as the next guy at Boalt, and I probably like the idea of a competitive market even more than the next guy at Boalt. Plus, I'm cheap. I know, I know, "the firm will pay for it" but just because I can subsidize BarBri for free doesn't mean I want to. So in short, I'm all for it.

So somebody, please. Talk me out of it.

Is UC Berkeley Violating Student Rights in Handing Out Suspensions Over Protests?

A statement made by anonymous Boalt students takes a look at a number of disciplinary measures handed down by UCB to Andrea Miller - one of the protesters who was present when the Chancellor's house was attacked.

If Miller was engaged in non-violent protest then it's unacceptable for UCB to go after her (and from what I've read, it seems like they're systematically targeting the students who were at the Chancellor's house when it was attacked, regardless of whether or not the students can be shown to have participated in the attack). It's also worth noting that none of the students present are being criminally prosecuted for their alleged misconduct.

In the statement there's a focus on how Miller's rights have been violated by the UCB disciplinary process, which from my rudimentary understanding of the subject seems to be true, but the piece also uses a lot of empty phrases including "Stalinist procedure" and "Gestapo-like." The attack on the Chancellor's house was also downplayed heavily. I understand that the statement is intended to be read from a radical viewpoint, but there has to be some benefit in appealing to those of us who agree that the UCB acted poorly in response to the protests, but no better than to be taken in by needlessly inflammatory language.

A few more thoughts:

1. The action against the student seems improper if the facts of this statement or true, but it'd be a stronger statement without the hyperbole and with some good cites backing up the legal positions.
2. Who wrote it? Why are there no names attached?
3. There's also another post on the site advocating violence as a means to an end when protesting, which is a position that some consider theoretically and ideologically sound, but often comes with consequences attached (like getting suspended from UCB).

The Shallow End

I saw about two minutes of the premiere of the Deep End last night. I'm not much of a prime time guru, but I thought it was terrible. So did a newly minted BigLaw associate, who requested a post:

So I think you should post something on N&B re: the Deep End, because it seems like a lot of us newbies were morbidly drawn to watch, and there is something really hilarious about a show about first-year associates at a biglaw firm premiering the week many first years started work after months of deferral, in an economy where lawyers have been laid off by the score. My expectations were very low, but the Deep End was really, really, awful. In an age where nearly every man, woman, and child in America is a lawyer, I'm kind of in awe of a show that doesn't even pretend to have a veneer of accuracy (like the guy who tells his colleague he got her filing in by sweet talking the bailiff -- I'll tell you where the bailiff would file something you gave him/her, and it wouldn't be somewhere that would stamp it "docketed"). A number of teachable moments for J. Steele though.

IMO most implausible elements of last night's show were: 1) lawyers with mobile phones that ring; 2) an associate saying she graduated first in her class from Case Western, like that was a good thing; and 3) attractive paralegals.

Open forum for other observations.

Campaign Finance Deform

I hope someone who knows more about this will soon post a more thoughtful analysis, but in the meantime, yuck.

UPDATE: After doing a little more thinking on this, but with the disclaimer that I still have not read the opinion, here are my rudimentary thoughts:

The argument emerging from backers of the opinion seems to be that money has long been legally equated with speech (can we get a fact check on that?),¹ so this is a win for the First Amendment. Maybe that's the Supreme Court responding to James' and my poorly constructed jokes at the expense of Originalism? If so, I apologize. Since it's a 5-4 opinion, I have to assume the issue is not quite that clear-cut, and I understand that the opinion goes much further than the facts required, not that I often complain about such things. Legally, the issue seems debatable.

Politically, however, it couldn't be clearer. This is a win for Republicans, as long as they remain the party of corporate America (keep trying, Senate Democrats). Yes, Unions can also contribute (at least for the duration of their lingering relevance), but I think we all know who has the biggest money stick. Not surprisingly, many conservatives have come out in favor of the decision. I don't blame them.

What does bother me, however, is when they pretend this is going to balance the political process. Ladies and gentlemen, I give you John Boehner:

"I think the Supreme Court decisions today are a big win for the First Amendment and a step in the right direction," said House Republican leader John Boehner of Ohio. In his view, the Constitution's protection of free speech extends to campaign contributions. No organization — business, union, whatever — should be limited by the government, Boehner said. Instead, he wants groups to disclose every dollar they spend on campaigns. "Let the American people decide how much money is enough," he said. "Sunshine really does work if you allow it to."

I disrespectfully disagree. While this might sound like increased transparency in theory, in practice, any such effect will be completely drowned out by the endless hours of bullshit pouring out of your television this November. The number of Americans who value their vote enough to look into who paid for the ads is miniscule compared to those who will swallow wholesale anything that comes out of their magic demon box during The Ghost Whisperer.

The only benefit of putting these donations on the books is that it gives candidates one or two extra points to score in a debate--"My opponent would like you to believe biodiesel can work, but his campaign took X Million Dollars from Con Agra this year!" Great. This might mean something if it was not immediately followed by, "My opponent is only saying that because he received N Billion Dollars from Exxon-Mobil!" The fact is that when everyone is dirty, it doesn't matter where you shine the light. And with so many deep-pocketed corporations diving head-first into the political process, no one is going to get through an election without taking the money. Democrats will get enough to play, while Republicans rake in enough to win and then build some spaceships.

Constitutionally, this might be a split decision. Politically, it's a landslide.

________________________________

¹ (Patrick): Fact checked at comment ten (7:59 a.m.)

Good! Win!

Update 01/21/2010: A non-password protected version of the article is here.

Update 01/22/2010: You can find Volokh Conspiracy discussion of the issue here.

________________________

The Daily Journal is reporting (behind password protection) that Obama is "poised to nominate" Professor Liu to the 9th Cir:

Jan. 20, 2010: Three Californians Up for Federal Bench (Daily Journal) "The Obama administration is poised to nominate three Northern Californians to the federal bench, sources have told the Daily Journal. The nominations could come as soon as today, when the U.S. Senate reconvenes. Goodwin H. Liu, a UC Berkeley School of Law associate dean and constitutional scholar, is said to be an Obama pick for one of the two vacant seats on the 9th U.S. Circuit Court of Appeals . . . .

Question of the day: what professor is next in line for collective student adoration?

A Call to Arms

Word on the street is that Zeb is going to begin instituting a $5 minimum for credit card purchases, destroying the utility to a coffee-only purchaser. Where are the protestors when we need them?

Is the Book Store Open or What?

As some of you probably noticed, neither the temporary bookstore nor the normal bookstore seemed to be open today.

What's the deal with this? How will we buy overpriced books in order to support crap student groups like the Federalist Society?

Sometimes Even a Federalist's Heart Can Bleed

I recently saw a video on CNN.com (unfortunately it was Nancy Grace, so I had to look for a better source). EDIT: The story is about a school in Oregon refusing to allow a third grader with autism (it sounds like a relatively severe case of autism) to bring his service dog to school.

I looked around, and found this article, giving a more reasonable account of the situation. Now, I am by no means what one would describe as a bleeding heart, but it is my understanding that autism is one of the fastest growing disabilities from which children (and adults) suffer. I am sure there are education law people who know this stuff much better than I do, but it seems to me that this violates the ADA. I did a little digging, and found that there are three provisions that protect the needs of special ed kids: the ADA, the IDEA, and Section 504 (I have no idea what title that is referring to, and my thirty seconds of googling did not give me an obvious results, so I gave up).

My question is this: do any of these federal laws afford an autistic child the right to bring a service animal to school? I understand that there are CERTAINLY people who need service dogs. I also understand that this service dog helps the child (at least in this particular circumstance). However, does the fact that the dog helps the child deal with his autistic tantrums justify its presence in the classroom?

I am on the fence on this one. My initial reaction is, "Why not let the kid bring the dog?" Autism is a widely recognized disability, and the dog affords the child an opportunity to function in a school setting. However, I can also see that the dog could be an enormous distraction to other children, particularly in a third grade special education classroom. Further, the assistance the dog gives is not functional (as it would be for a blind person), but rather is used for comfort. Couldn't there be a less disruptive manner to address this?

Finally, this is a remarkable digression from the original post, but should the federal laws even govern this? As those of you who know me understand, I am not the biggest fan of the current view of the Commerce Clause. How, exactly, does the accomodation of children in special education in a small town in Oregon affect commerce? Because their education will later permit them to participate in commerce? Because the supplies used to instruct the students were involved in, or otherwise affect, interstate commerce? This seems like it should be left to the States to me...

Donate Lexis Points To Help Haiti

Apparently the American Red Cross takes donations through Lexis points. As you're all probably aware, there is a huge humanitarian crisis in Haiti due to the earthquake and I'd say your Lexis points are worth more to the Red Cross than they are to your coffee budget, but that's just me.

So, if you agree, click the link below, go to rewards and click the donate to charity link. You'll find the Red Cross on the first page.

http://www.lexisnexis.com/lawschool/rewards/rewards.aspx

Thanks,
James

Wow!

Just watch...no introduction needed.




Steve Benen compares this performance to Bart at the Model UN session talking about Libya:

He stood up, cleared his throat, looked at the blank page in front of him, and winged it.  "The exports in Libya are numerous in amount," Bart said earnestly. "One thing they export is corn, or as the Indians call it, maize. Another famous Indian was Crazy Horse. In conclusion, Libya is a land of contrast. Thank you."  None of this made any sense, but Bart couldn't just stand up and say, "I have no idea what I'm talking about because I'm unprepared." He had to say something, so he made up some silliness and got the ordeal over with as quickly as possible.  Every time I hear Sarah Palin try to answer any question on any subject, it immediately reminds me of Bart's classroom presentation.

I'd argue that Bart was slightly better prepared because the actual presentation begins with:

Skinner:  "OK, Libya...exports!"
Bart:  "Yes, sir, you American pig!"
Skinner:  [chuckle] "Nice touch."

Why is anyone with a working organ inside the skull listening to anything that this woman has to say?  This isn't like Dubya.  Sure he was a little rough around the edges, but no one doubted that he had the basics down.  Palin scares me.  Her followers scare me even more by constantly reminding me of this nation's dark moments brought forth by willful ignorance.  Which one?  "All of them." 

Robertson, You Are a Disgrace to Patricks Everywhere

If you have a pulse, you know that an estimated fifty- to one hundred- thousand people died in Haiti this week.

What deaths have already occurred were caused by the combination of a massive earthquake and dilapidated infrastructure, and what deaths have yet to occur will be attributable in part to lack of medical infrastructure in the impoverished country.

At least that's what people subject to the virulent message of mainstream media think. Evangelical broadcaster Pat Robertson is not one of those people. His liberation from the chains of reality allows him to see the quake as a "blessing in disguise," because it is punishment for Haiti's "pact with the devil" and an opportunity for them to come to God:

Something happened a long time ago in Haiti, and people might not want to talk about it. They were under the heel of the French. You know, Napoleon III, or whatever. And they got together and swore a pact to the Devil. They said, we will serve you if you'll get us free from the French. True story. And so, the Devil said, okay it's a deal.

Link here.

Pat Robertson is right about one thing. He is right that I don't want to talk about "Napoleon III, or whatever." I want to talking about helping those people, about international aid, and about saving what lives we can.

In the meantime, three words for Mr. Robertson: go to hell.

Your Guide to the Late Night

If you've been following the kerfuffle over at NBC regarding their 10 PM prime time and late night programming, well then you too must read the HuffPo.*  I think an overview of the cast of characters is helpful.

Jay Leno -- Ex Officio Member of the Homeowners' Association.  Former Chairman.  Unfunny.  Egomaniac.  He has two remotely amusing bits:  Headlines and Jay walking.  Neither of those funny bits requires any humor on Leno's part.  Just rebroadcasts the stupidity of the masses.  Failblog is a lot funnier.

NBC (as played by current CEO of NBC-Universal Jeff Zucker).  Contrary to the Princeton-grad, self-assured, and devilishly handsome Jack Donaghy (see starting at 13:00 mark of this), Zucker is more like the battered spouse who just can't stand up to Leno and say "no more." 

Conan O'Brien  -- sarcastic, smart, and funny child of Leno and NBC.  The parents' troubles at home have repeatedly stifled the growth of his genius mind, though he was the graduation speaker.  As a child prodigy, he gave the world "Homer Goes to College" and "The Monorail."  It's time he left the abusive household and went on to greener pastures.

David Letterman -- Ran for the chairman position against Leno, but lost. Relishes the fight in his neighbor's household.

The Viewers -- Long ago realized that cable has by far the better, more original programming.

*Donaghy:  "Way to tell me something I already knew. What are you, The Huffington Post?"

CAFE ZEB TAKES CARDS NOW!!!!!

This is a truly momentous day.

Housekeeping - No, Really, Housekeeping

We all know about the budget cuts and how they've required custodial services to be sliced.

I also presume that when we were all little, our parents and/or guardians taught us that when one makes a mess one cleans it up.

Instead, someone at Boalt feels it's appropriate to throw a New Yorker on the mess and walk away (maybe it's an N&B poster, who knows).

I've attached a picture in case you have trouble identifying the spill/New Yorker combo as yours. I have no idea what the three foot long slick of brown liquid is, but I'm sure those with lower level lockers would appreciate it if you cleaned it up.

Separate but Equal?

Two Boalties are doing all of us a favor by blogging the initial challenge to Proposition 8. As you probably know the proposition, which was passed last November, made gay marriage illegal in California.

One of the things I find interesting is that the gay marriages before the proposition was passed are currently still legal in CA, while additional marriages have been barred.

Check out the blog here: http://prop8.berkeleylawblogs.org/

Also, check out a very interesting article in the New Yorker about the challenge: http://www.newyorker.com/reporting/2010/01/18/100118fa_fact_talbot

"We're Going to Take a Commercial Break, and I'm Going to Put My Head in Ice Water"

Open thread for discussion on Professor JY's appearance on the Daily Show With John Stewart:

• Part One
• Part Two
• Extended, Part One
• Extended, Part Two
• Extended, Part Three

I guess my thoughts on this have been replayed over and over and over . . . With respect to tonight, I thought JY was commendably calm, collected, and intelligent. So was Stewart -- I really appreciated that at those times it became clear that Stewart wasn't following, he stopped and listened.

Anyway, without getting further into it, I'll limit this post to a few memorable quotes (not necessarily from the JY segment), links to the online interviews when they are available, and open the forum for comments.

• [After Stewart asked how it felt to be infamous] Well, the same thing must happen to you. As soon as they heard I was coming on here, my students started emailing me, asking how tall you are, how much you weigh, etc.
• We're going to take a commercial break, and I'm going to put my head in ice water.
• That is an established fact of conventional thought.
• It's the republicans who will keep you warm and safe, to enjoy the hell-scape the world will become.
• I hope that someday in the future, you'll get a chance to, uh, write humane, um, briefs.

And another comment, not from the show, but overheard in the room while I watched:

• [About Rod Blagojevich]: His poor, poor publicity team. This last year must have been so hard!

Way to Go 2009

Commenter asks for a separate thread on the just released stats on the July 2009 exam.  We're at 93%, tied for 1st among California ABA law schools.  Out of staters that beat us include Harvard, NYU, and Yale.  All in all, great results.  It also should put to rest any gloating by other schools that achieve their results through forced attrition, final exams directly replicating the bar, and courses on "the performance test."    Good job, kids. 

On the troubling side, the racial numbers are scary.  And I wonder if the higher results overall (and at Boalt) are the result of the economic downturn and the fears of losing jobs that come along with that. 

A Modest Proposal

Seriously, people, stop flipping out about the seating charts. You don't need to fill it out ahead of time. You don't need to have intra-mod email chains (tres, I'm looking at you) debating what the appropriate etiquette is because I'll make it very, very simple:

Go to class, sit in a seat. Fill in the chart once you sit in the seat. I understand that HHs only go to those in the first three rows in the middle, but you still look like a huge chomo filling that shit in early.

Love,
James

Homecoming

Last night I watched the final episode of The Wire, and without spoiling anything, let's just say a lot of things/people found their home.  This morning, Boalties are looking at first day assignments, asking about winter break, buying textbooks, etc.  Sarah Palin will join Fox News--the natural podium for anyone who wants to spout off conservative talking points completely  bereft of any basis in reality without any pushback whatsoever.  Pete Carroll will go to the Seattle Seahawks to finally pay players to play football with impunity--as he is naturally inclined to do.  And Professor Yoo will appear on The Daily Show to peddle a new book on his views of executive power, which is the natural inclination of anyone who is receiving negative public attention and focus on past acts involving those views.  Welcome home, everyone. 

Dean Edley's Large Role in the Obama Campaign

Marc Ambinder has an early read of Game Change, the new book on the 2008 campaign by John Heilemann and Mark Halperin, and finds out the following:

Harvard prof. and Obama friend Chris Edley played a much larger role at key moments in the campaign that has been previously reported.

We'll have to read the book in order to find out the extent and nature of Dean Edley's apparently large role in the Obama campaign. It should hit book shelves tomorrow for those interested.

Question of the Day

WN (Boalt '07) asks, "Why isn't there an Obama poster of Hope with 'Red' from Shawshank Redemption?"  I hope this isn't the last thing that goes through my head. 

Me Fail Typing? That’s Unpossible

Mrs. Werner, the gradeschool keyboarding nazi-marm of my youth, used to tell us, “You are entering the computer age. The future for you is exciting and unknowable, but the one thing we do know is that you will all need to become skilled typists.” ¹

She uttered these and other prophetic threats (“if you do not know how to format a business letter you will never find a job, your parents will die, and you will have to beg for your food”) as she paced the rows of circi-1989 IBM computers, correcting students’ posture, pointing, pecking, and giggling, and good moods. She wore white nursey soft-soled shoes, and I still remember how it felt to realize she had slipped up from behind to scrutinize me. Hell. It felt like hell.

The hell didn’t just come from Mrs. Werner’s stealth. It also came from ridiculous rules that make up a grade school keyboarding class. Rules like, “strike the ‘Z’ only with the little finger on your left hand,” “use five spaces intent the first line of each paragraph,” and most annoyingly to me, rigorous standards for the number of spaces after each sentence. Mrs. Werner said two. My instinct, gut, and stubbornness said one, two, ten, it doesn’t make a difference. It’s a space, right? What does two accomplish that one does not? And let’s face it: what is so horrible about ten that doesn’t apply to two? It’s messy? Thoughts are messy! Keyboarding is messy! I’m nine years old for heaven’s sake! As you might predict, she beat it out of me in the end, but it took longer for the itch to go away: what the hell is really so wrong with one space?

I admit that the debate over whether a sentence should be followed by one space or two may seem petty. Even if petty however, it is a debate I lost once in elementary school when Mrs. Werner broke me, and it’s a debate I lost again tonight when the internets convinced me to go back to the heathen ways of my nine-year-old self.

That’s right folks, it looks like I’ve been lost, saved, and then saved again. Tonight, I asked Google to how to make Microsoft Word stop “correcting” the spaces after my sentences when I copy and paste. Mrs. Werner had made me into a double-tap the spacebar kind of fellow, and it bothered me that Word wasn’t adapting. But instead of a handy Word shortcut, what Google gave me was an internet assault on my pre-pubescent psychological imprinting. Two spaces, according to the world’s largest electronic brain, went out in 1947, right alongside sailor-top dresses and victory lipstick.

The rationale for double spacing, according to the internets, came from problems typesetting fixed-width fonts - problems longer relevant in the age of proportionally spaced computer-generated text. Unbeknownst to me, The Chicago Manual of Style began recommending in the mid-1970’s. So too with The Associated Press Style Book, The Publication Manual of the American Psychological Association, and The Gregg Reference Manual. The MLA Handbook for Writers of Research Papers appears to poo-poo two spaces as well, because although it states that two spaces are permissible, all its examples are rendered with only one.

Of course I know I can write my damn sentences however I want – that part of my nine-year-old spirit survives. But what about all those judges, partners, and slightly too big for their britches junior associates who will soon preside over me in professional judgment?

With my deepest apologies to Mrs. Werner, and not without a fearful peek over my shoulder, I accede. I am back to one space.

___________________
¹ Or, "You are entering a world of pain."

Said Post

I've been in love with Mark Twain for a long time now.  In fact, if I didn't rely on The Simpsons or The Big Lebowski as tools of communication, I'm sure I would use Twain.  This is just an excuse for introducing one of his most brilliant essays titled "Ye Sentimental Law Student."  Please take the five minutes to read it.  Best line?

And about said sun, and the said cluds, and the said mountains, and over the plain and the river aforesaid, there floats a purple glory--a yellow mist--as airy and beautiful as the  bridal veil of a princess, about to be wedded according to the rites and ceremonies pertaining to, and established by, the laws or edicts of the kingdom or principality wherein she doth reside, and whereof she hath been and doth continue to be, a lawful sovereign or subject.

When it comes to writing, our profession does not really have the best record in history.  On top of that, most public schools in California have stopped teaching grammar and other basics of the English language.  Pile on top of all of this various technological advancements that are destroying language as we know it.  But hyperbole aside, beginning with law school and continuing through practice, I've learned effective writing in two distinct ways.  The first is simply learning the lessons that used to be taught in grammar school.  See e.g., Brian Garner.  The second is learning to ignore all my prejudices and stereotypes about legal writing.  And as history has taught us, getting people to disregard their prejudices is one of the easiest tasks performed. 

The Constitutionality of Health-Care Reform

As it becomes increasingly clear that some federal scheme to regulate the health insurance industry will soon go into effect, Conservatives appear ironically poised to seek help from those activist judges they're always whining about. See, for example, this article in the Wall Street Journal by Orrin Hatch and Kenneths Blackwell and Klukowski.

It claims that the proposed Health Care bills would be unconstitutional for three reasons: 1) Congress has no constitutional authority to force individuals to buy health insurance; 2) Spending arrangements cut by the legislators who signed the bill run contrary to the "general welfare;" and 3) Requiring states to create things like benefit exchanges amounts to unconstitutional commandeering of state government to operate a federal program.

I live in something called "reality," so I'm not going to bother playing pretend with item #2. But let's examine the other two claims.

First, although I haven't yet received my Con Law grade, mandating health insurance seems like a perfectly legitimate exercise of Congress's power to regulate interstate commerce, at least as it has traditionally been interpreted by courts. Orrin and the Funky Bunch claim that the Lopez ruling could be relied on as precedent to overturn such a provision, because the Court

rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

Um, no it wouldn't. I'm going to be polite and call this a very broad reading of the Lopez decision, which in fact invalidated a law prohibiting gun possession within 1,000 feet of a school zone primarily because gun possession could not properly be considered economic activity. Accordingly, regulating an economic activity, like purchasing Health Insurance, would be "exactly" what the Court said Congress could do. Thanks for playing, Orrin. (Also, capitalize "Court," you big jerk.)

Setting aside Lopez, the column claims that requiring individuals to purchase insurance is an unprecedented expansion of the commerce power, since it forces people to participate in a certain economic activity instead of regulating activity in which they choose to engage. This argument strikes me as more novel, but no more likely to succeed. Congress requires us to pay taxes, which could be considered participating in an economic activity. It also requires us to purchase passports in order to travel abroad; to pay for stamps in order to send mail; to pay fees in order to hunt, fish, or access federal parks; and to pay gas tax at the pump or indirectly on airline tickets, bus passes, etc. I suppose it's conceivable that someone may choose to not participate in any of these activities, but that person lives alone in the woods and is probably planning to blow up a federal building anyway.

The law may in fact be unprecedented, but I do not think a court will view it as qualitatively different from these other schemes, despite its doing away with the illusion of choice.

Finally, the article argues that forcing states to create benefit exchange programs but not as a condition of receiving some federal funding runs afoul of federalism. It cites the "commandeering" cases (Printz and New York v. US) and general principles of the federal-state dichotomy. The authors may have a point here, but I think we'd need more facts about the bill to know for sure. Printz and New York dealt with requirements on state government more specific than simply establishing some program of benefit exchanges. Also, the article mentions that the bill would allow the Secretary of Health and Human Services to create these programs if the states refuse, so arguably it doesn't require state officials to do anything.

Overall, I think the authors' specific arguments are cursory at best, but they have a point that the Bill presents some unexplored Constitutional territory. Do any of you other savvy Con Law scholars care to take a shot at mapping it?