Sunday, February 29, 2004

Book review

I just noticed Prof. Bainbridge's review of Michael Oren's Six Days of War. This isn't an area on which I'm an expert, but my take on the book dovetails fairly well with his. As diplomatic history, it's excellent for the run-up to the war, well deserving of 5 stars. As military history, though, it's, well, an excellent diplomatic history. IIRC, pre-war diplomacy is the first 60% of the book, and the actual combat was given what felt like short shrift. As for the maps, well, they're either (1) awful or (2) nonexistent.

As for Oren's broader thesis that the Six Day War is the background against which post-'67 Israeli conflict history has played out, well, if you look at a map as of June 11, 1967, and compare it to today, that seems pretty obvious. At the same time, though, the '73 War may be more important, for that seems to be where the Arab states realized that they couldn't defeat Israel by direct military confrontation (or at least they haven't tried since then). Or Camp David and the idea of trading land-for-peace, or Lebanon, where the Israeli military proved fallible, or...

3000 Hits

Ben's posts today put us over the edge. Thanks to all our readers for sticking with us. Note that at 5000 hits, everyone wins a prize. That's our (unenforceable) promise to you.

Thursday, February 26, 2004

The Great Airport Outlet Search

Despite the emergence of the internet age, Midway Airport in Chicago seems to think that outlets are only for vacuums. This creates many headaches for regular travelers like me, who don't feel like being cut off from the world for 4 hours every weekend. Thus, I despirately circle the area around my gate, scanning for any post, heater, or piece of carpet that has an outlet. But when I see one, what a rush. After a short, girlish scream and some cuddling, I plug in and get to work (as I'm doing now). Some airports, like the glorious Harsfield-Jackson, have sections of the airport dedicated to computer use - for free! But Midway hasn't caught on to the whole computer thing. I hope they'll figure it out soon. But they probably won't, I realize. A man can dream, though.

Wednesday, February 25, 2004

Welcome Perverts!

If you do an AOL search for "pictures of people on nude cruises," our site is one of the top choices. We're nestled between "erotico gallo for free!" and "adult pocket pc" (as in, "is that a PC in your pocket or are you just . . . wait, that is a PC in your pocket!") How do I know all this? Because we've started getting hits from such searches.

If you're reading this post based upon such a search, sorry to disappoint you. The best I can do is point you to some of our more sensual posts, such as this one on student porn, this one on peanut butter squares, or this one on water birthing. We aim to please.

Tuesday, February 24, 2004

"Links To This Post" Feature

Now that Volokh's done it, I've done it too. Doesn't this make trackback redundant, you ask? I don't think so. Trackback will tell you in the post itself (by changing the number) whether someone felt the need to inform us of a response. The "links to this post" feature, on the other hand, provides information on everyone who's linked to us, whether they provided commentary sufficient to invoke a trackback or not (or if they provided sufficient commentary but didn't inform us, a blogging no-no). Many links to this site don't provide commentary so much as they provide more links, useful information, etc, so I think you'll find both functions useful. Or at least I will. You probably don't care. But congrats on reading this far.

Posner's Spawn

No, not this fellow. This fellow. This new Judge Posner opinion contains an interesting and educational discussion of copyrights for co-creators, a comparison of equitable estoppel concepts in statutes of limitations to adverse possession of property, and descriptions of Spawn comics such as this:

"McFarlane’s original Spawn, Al Simmons, was a tall figure clad in what looks like spandex (it is actually 'a neural parasite') beneath a huge blood-red cloak, making him a kind of malevolent Superman figure, although actually rather weak and stupid." (from How Appealing)

Sunday, February 22, 2004

Blunt and Influential, Kerry's Wife Is an X Factor

New York Times

I appreciate the Times' effort to give a balanced portrayal of Teresa Heinz, but it's just too difficult an endeavor (see here for a longer profile of the couple). In trying, article makes her look even worse. Straining to find positive things to say, they come up with statements like this:

". . . she is known as a highly intelligent and devoted spouse who looks after her husband . . ."

It's important to recognize that the "husband" in question is her deceased previous husband, but point taken. As for the "looks after" thing, it just makes her sound controlling and creepy, but maybe that's just bad diction by the writer. However, there's no mistaking reality when the passage is read in context:

"Ms. Heinz Kerry may well have saved her husband's life. But politically she may be both an asset and a liability for his ambitions. While she is known as a highly intelligent and devoted spouse who looks after her husband, Ms. Heinz Kerry has a reputation as being offbeat if not a little odd, and even some Democratic strategists say that could complicate the Kerry campaign's efforts to make the Kerrys appealing to voters."

She's not just "offbeat if not a little odd." She's one of those really, really eccentric rich-types. If you know someone like this, you probably just refer to them as "crazy."

She's not stupid, mind you. Utterly without tact or social graces, yes (watch Kerry react to one of her statements with "She didn't say that publicly, did she?"). Insufferably arrogant, absolutely (watch this interview, for example. You'll forget that John Kerry is even running. Everything is about her. She even nominated herself for Vice President!). But she's not stupid. So maybe she'll tone it down a bit in the coming months.*

The funny thing is, many of these traits make Heinz kind of likeable, because it seems as though she doesn't have a game face. She acts like a real person all the time, which is kind of shocking at first. But once you get used to it, she's much more tolerable. So it'll kind of be sad if Kerry's people make her suppress her personality for awhile. Besides the potential for making her seem even more weird, acting like someone else might cause people to miss out on how interesting she is. I think letting Heinz be Heinz is the only way anyone will come to terms with her.

* These videos are from the Kerry website, and thus are some of her best appearances. I've seen short interviews in which she looked drunk, disoriented, and disinterested. I don't know if she was actually any of these things, but needless to say many of her appearances don't help her image.

Places I've Been

I didn't include brief stopovers and the like. It's clear that I have much to see.

create your own visited states map

create your own visited country map

Note that my U.S. map is fairly similar to Al Gore's electoral map in the 2000 election. You tell me what that means. Maybe it's a prediction of how Kerry will do in 2004. If only I hadn't taken that drive from LA to Chicago . . .

. . . note that I've been to Texas, however. Nix that theory.

It's kind of funny to look at the world map and see northern Canada and southern Mexico highlighted. I've never been much past the border of those countries, but the map makes it seem like I'm a well-traveled mountaineer. It would be cool if they let you designate locations by region for the larger nations; but you can only ask for so much.

In the meantime, I highly recommend the Yukon Territory. If you've always wanted to visit Siberia but are only willing to travel 3,000 miles or so, the Yukon Territory will suit you nicely. However, if you're looking to make friends there, remember that it's larger than California but has 1/1000th of the population (2/3rds of which reside in Whitehorse). Oh, and the average temperature this time of year is -13 F. Here's a tourist site. Enjoy! (from World Wide Wood)

Japanese Law Schools

I just ran across this post on Japanese law schools over at Waddling Thunder, linking to a page explaining the changes courtesy of my old school. Waddling's post uses this as an example of almost reflexive anti-Americanism among some groups. However, my understanding is that post-graduate school education in law is exclusively a North American (read U.S. plus our Canadian lackeys) phenomenon, so I'm going to have to disagree with him in this regard. Second point about his observations, my understanding is that there's been a gradual increase in the number of people who pass the bar, up from 500 to 1200 or 1300 now, with an expansion to 3000 once the new law schools graduate their first classes (Feb/Mar '06 for the first 2 year classes, '07 for the 3 year students), and while there may be many people who spend 7 (or more years) taking the bar exam, there are also first time passers (these people tend to end up in the white shoe law frims).

Two issues that Waddling didn't raise that I find worth noting. First, what happens to those graduates of the undergrad law faculty programs who don't pass the bar or just don't take the bar? Well, the Japan Federation of Bar Associations doesn't have the same type of control the ABA does here, so many things that would be categorizing in the U.S. as practicing law just aren't in Japan. Consequently a company like Toyota has a legal department filled with a number of bright, qualified people negotiating contracts, doing deals, etc., none of whom are lawyers, and probably relatively few of whom bothered to take the bar exam. By contrast, if you looked at GM's legal department my supposition would be that you'd find it to be filled with lawyers. Naturally, of course, some law graduates won't end up doing legal work at all, which isn't a problem.

Second issue, how will this system change with the introduction of the new post-graduate law schools? The really big issue here (ignoring how you go about creating 60 brand new law schools on 3 years' notice) is that the new law schools will have a combined class size of roughly 6,000. 3,000 people a year will pass the bar. That leaves 3,000 students a year who will not pass the bar. Undoubtedly, some of those people will take the bar a second and third time and pass it then, but that doesn't solve the problem, since their passing will mean new graduates failed (fixed number=zero-sum game). Given this state of affairs, it's pretty easy to see that probably the most important way to distinguish between law schools will be the bar passage rate. This will encourage law schools to be simply bar exam preparation schools. Eventually, it's not difficult to foresee a situation fairly similar to the one that exists right now, except with a higher bar passage rate, with one important exception.

Companies like Toyota will still not require lawyers for their legal department. Undergraduate law faculties will continue to exist. Not all undergraduate law students will go to law school (one of the underlying effects of the introduction of law schools will be to increase the number of non-law faculty students who attend law school and presumably pass the bar). Toyota will then have a choice: (1) hire bright, well-qualified people right out of undergraduate law faculties or (2) hire bright people who spent 2 or 3 years in law school and then either took, and failed to pass, the bar, or didn't take the bar examination, despite spending the last 2 or 3 years in what is essentially bar exam prep school.

This touches into a recurring theme in education, namely the problem of teaching to the test. I don't claim to have any expertise in this area, but let me note that my intuition has been that teaching to the test is fine if the test accurately encapsulates what you're trying to get out of the program. This is admitted a somewhat crude heuristic, but let's say that Toyota is willing to hire category (2) people over category (1) people, despite probable higher salary expectations if it believes (2) people are commensurately better qualified. Unfortunately, the Japanese bar exam is best described as at least a little unusual, not at all like the U.S. state bar exams, and several years of preparation for it would likely not leave category (2) people any better qualified than category (1) people, let alone commensurately so to expectations. This would leave category (2) people who don't pass the bar no better off than, and likely worse off than people who currently do not pass the bar.

In short, my analysis based on the facts as I understand them indicates that the introduction of law graduate schools to Japan will probably not have the salutary effect believed by its proponents, but will leave the situation no better off, and possibly worse off, than maintaining the current system but raising the number of bar passage rates.

Topics that I haven't dealt with include (1) the salutary effect of having non-law faculty students in law school and becoming lawyers, (2) rational actor law graduate school applicants (i) only applying to the top law schools, (ii) electing to attend law school or not, and (iii) Lake Wobegon-style biases that offset rational actors, (3) the implication of the 2 year (for law faculty students) as opposed to 3 year (for other students) law school, (4) the Japanese company practice of rotation that produces generalists rather than specialists and its influence on hiring, and (5) the future of bar exam prep schools. I may have time to deal with at least one of these issues in the coming days, but I make no promises.

Internet Cell Phone Access UPDATE

Finally getting around to the update mentioned in my previous post...

There are a couple interest dynamics dealing with Japan that I neglected to mention that help explain why cell phones are so popular that aren't touched on in the article. I mentioned the economics and the sociological explanations in the previous post. There are two other aspects that are probably important, one of which is touched on in the article and the other of which is not.

First (or third), is the widespread use of public transportation to commute and small-"t" travel in Japan, which makes it feasible to make extensive use of advanced features in cell phones in a way that is not possible in a car commuter culture like the U.S., examples in Dr. Gridlock notwithstanding. This is buttressed by the long commuting times in places like the Tokyo region, resident to nearly one-third of Japan's 125 or so million people (Yokohama may be a city of 3 million people, but its daytime population is less than 90% of its nighttime one, which is sufficient to qualify it as a bedroom community).

Finally, entertainment and visiting with friends in Japan occurs almost exclusively at public places like bars and restaurants; home parties are generally exceedingly rare, for the simple reasons that there's not enough space and home is too far away. People are consequently away from home and on the move much more frequently than there are in the U.S., which just makes the cell phone (and its myriad potential features) that much more attractive.

There are certainly implications I haven't discussed, like differences in cell phone technology and broader implications for the use of cell phones for internet access rather than computers and what that means for future development, but those generally aren't areas in whcih I claim to have expertise, so I'll just note them for anyone who's reading.

Saturday, February 21, 2004

U.S. Students Still Getting the Paddle

Washington Post

A Mississippi vice-principal resigned for refusing to paddle public school children as a form of punishment. I had no idea public schools still did this in some parts of the country. Some of the justifications for the paddling practice are great:

"'The point is to get the students' attention, not to inflict pain,' said Carver Middle School principal Earnest Ward. 'Sometimes all you have to do is hold a paddle up, and it will scare a student to death. Others are not afraid of it at all.'"

Hey, give the guy a break! He just wants to get their attention. That's how I get people's attention. Admittedly, it's usually the police's in the end. More:

"'Are we going to believe man's report or God's report?' asked Cherry Moore, a special education teacher at Carver and co-pastor of a local church. She believes that Old Testament references to 'spoiling the child by sparing the rod' should outweigh the allegedly negative effects of corporal punishment cited by child development experts."

Moore forgot to mention that these same studies would actually permit girls on their period to be seen in public. They claim this isn't a major public health concern! Just goes to show you.

Of course, the Post has an agenda here, so I'm sure some administrators have a better attitude about it. But, sadly, not the principal, according to the vice:

"According to written notes kept by [the vice principal] McLaney, he received repeated admonishments from Ward, the principal, including comments such as, 'These kids are different, all they understand is the paddle,' and 'walk the halls and, if the kids are out of line, burn their butts.'"

I'm sure Ward claims he's just making sure "no child's left behind." He only wacks from the right, after all.

Democrats United in Asking That Nader Not Enter Race

New York Times

The Democrats are so desperate to keep Nader out it's almost funny. In fact, it is funny. Check out this quote:

"'We can't afford to have Ralph Nader in the race. This is about the future of our country,' Terry McAuliffe, chairman of the Democratic National Committee, told CNN."

But can you blame them? I think Nader will be less harmful this year, because many Democrats learned their lesson from last election, but he'll still siphon off a significant number of votes.

The larger question for me is: why can't the Democrats bring him under their tent? I think the answer is related to comments I've made before: the Democrats aren't nearly as effective as the Republicans in co-opting politicians. Part of the problem is that really liberal people don't want to be a part of The Establishment, which the Democratic party (or any major party) likely represents to them. The Republicans at the extremes do not have such reservations.

But I still feel the larger problem is the Democrats' scattered vision. You'd think that being all over the place would give the Democrats a wider appeal. That may be true in voter terms (though it has the side effect of lower voter intensity), but not in terms of corralling politicians. Whatever the benefits of being wishy-washy, it hurts the recruitment of people with real ideas.

Nader is such a person. As much as Nader will criticize President Bush in the coming months, he'll also repeatedly remind us of his perspective on the country and the changes he's advocated for years. That kind of approach is in fundamental opposition to the Democratic party's angle this election, which has almost entirely been "Bush is bad, so we must defeat him." That's the Democratic cause. It's about the only thing that unites them (besides abortion). I don't think that's enough for Nader. If he runs again, I hope he'll tell the Democrats as much. We'll find out tomorrow.

Election Law Robs TV Soap of Biggest Star


"Greece's soap fans were mourning the loss of their top star on Friday, after grumpy police constable Theocharis was forced to quit by a controversial law curbing television appearances by election candidates.

Giorgos Vassiliou, who has been playing the bad-tempered policeman on 'Good Morning Life' for almost a decade, is running for parliament in the March 7 general election, and the law allows candidates only one appearance each on national TV in the month before the polls."

Good thing this could never happen in America! Imagine if Mr. Roper was forced to leave Three's Company because of Norman Fell's bright future in politics. Yes, now you can feel their pain. I'm so glad I live in a country where we don't subordinate individual freedom for the sake of nebulous concepts of fairness. Those poor, backward Greeks. Concentrate on building your Olympic stadium! Or at least do a little light reading.

Friday, February 20, 2004

Bill Pryor Recess Appointment

It looks like Bush did it again, according to The Corner. I thought the Pickering appointment would be an aberration because of its unique circumstances - Pickering hits retirement-pay eligibility right before his appointment ends (unless he's confirmed). Plus, the appointment basically flew under the radar, which might have been lucky. Or maybe no one in the general public cares.

Pryor, however, is a little younger, a little more controversial (at least in my mind), and thus a little more risky. That being said, I'm glad he's on the bench. He handled the Judge Moore situation quite well and seems to be fair-minded. I hope his tenure at the Eleventh Circuit shows off those qualities to everyone. Maybe the answer to liberal critics is to give the conservative guys a trial run - Ted Kennedy might be amazed to find that the Eleventh Circuit will not turn into "a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens . . ."

A problem with recess appointments is implicated in a "trial run" approach, however. A big part of good behavior tenure is that you don't care whether your decisions are popular - you don't have to please anyone. Pryor might be influenced to modify his decisionmaking to seem more pleasing to the Democrats when he's up for the real deal in 2005.

I do think there are a couple of responses to this argument: 1. if this process makes him more moderate, that's a good thing; and 2. the Democrats don't care if he becomes Justice Powell over the next two years - they don't want to incentivise this kind of tactic and thus are going to hold their ground - so why should he care about them? If his only chance is a big Senate win for the Republicans in 2004, political forces are unlikely to have an effect on him.

Well, whatever the case, welcome to the Eleventh Circuit, Judge Pryor. I look forward to seeing what kind of judge you'll be, and how your judicial career will play out.

Private Bush Meeting Gets Blogged

Washington Post

Rex Hammock of Rexblog met with the President yesterday and blogged about the experience from a cab immediately afterwards. Pretty cool. I've heard that the President is very effective in small groups (so long as the group doesn't consist of Tim Russert), and Rex confirms this.

I think it would be quite a treat if the President got rid of the Sunday radio address and blogged for about 10 minutes each day on his experiences instead. It would be a nice way to reach tens of millions of people in an informal manner while providing some insight on what the President does. And when I say blog, I don't mean a policy post once in a while from one of Scott McClellan's peons. I want the real thing.

Of course, the problem with blogging is that people will expect him to respond to breaking news, like the gay couples getting married in San Fran. His press people won't have that - they need time to craft responses. So maybe the angle on the project could be on what the President does, what he thinks about non-policy issues, etc. And of course, all posts would receive an examination before they're out the door. That's ok. I'd rather not see the President become the next Gregg Easterbrook.

Internet Cell Phone Access

Interesting post by Brian immediately below on the rise of cellphone internet access among the Japanese. Most of the increase has happended since I moved away from there (I lived in Tokyo Sept. 98-June 99), but the reasons for the 70 million internet cell phone users are (1) systemic and (2) less exotic than you might think. I'm pretty sure there are basically two factors at play here. First, almost all Americans with personal internet access connect through their homes, over the general phone lines using a computer and a modem. One of the reasons they do this is that it's pretty inexpensive to make a phone call with your modem and dial into an ISP. In Japan, however, local phone calls are VERY expensive compared to the U.S. (sorry, I don't have exact numbers, but it is significant), while intense competition in the cell phone market drives prices down and incentivizes the introduction of new features, like camera phones (previously) and internet access.

The second reason is more sociological in nature, more chic, and given rise to more bad analyses, bad writing, and mistaken facts (like much else about Japan, but that's a topic for another day), but Japan basically has this love affair with the new, and new technologies. Explanations for this vary: (A) it's the result of fairly wealthy population with a great deal of disposable income and relatively few outlets to spend it on; (B) it's nothing new, but simply a continuation of the same process you saw in the Meiji Restoration in the latter half of the 19th century where Japan went out to try to get the best from the West, and make it better (see Gerschenkron, Economic Backwardness in Historical Perspective); (C) relatedly, it's part of a longstanding Japanese cultural phenomenon, broken down into (i) a culture that lack independent voices so that when it moves in one direction, it does so wholeheartedly and without perspective or reason, (ii) the sharp dichotomistic preference for either the very old or the very new and/or (iii) Japan, it's a foreign country, and they speak a different language, and they write so different, and it's just that odd and wonderful (what I think of as the Lafcadio Hearn school).

Out of time for now, I'll have to say more later.

Thursday, February 19, 2004

In Japan, A Wireless Vision of Future for U.S.

Washington Post

"About 70 million Japanese -- 55 percent of the population -- have signed up for Internet access from their cellular phones, a threefold increase from 2000. Cell phones, or keitai in Japanese, are closing in on computers as the device of choice for surfing the Internet. While the Japanese are using their cell phones in the same way many Americans use their laptop computers or personal digital assistants, they also are pulling out their phones to watch TV, navigate labyrinthine city streets with built-in GPS systems, download music, take and transmit home movies, scan bar-coded information, get e-coupons for discounts on food and entertainment, pay bills, play Final Fantasy, even program karaoke machines."

I think it's great that Japan is out there to remind us we aren't the best/most advanced at everything. I've never been to Japan (I believe guest-blogger Tom spent some time there), but I've always imagined it as some combination of LA in Blade Runner, Wonka's Chocolate Factory, and Las Vegas. Lost In Translation did little to dispel that myth. I just think it's fun to be in awe of someplace, even if I've sexed it up a bit in my head.

Wednesday, February 18, 2004

13.5.1 Strikes Back!

NCAA bylaw 13.5.1 allows schools to entertain a prospect "at a scale comparable to that of normal student life." Apparently, Colorado-Boulder normal student life includes strippers and lots of sex. The simple objection to this is that 13.5.1 only applies to "the institution." Of course, the football recruiting coordinator is undoubtedly an agent of "the institution," and using your cell phone to call to get strippers for "young and very athletic men", which you are not, just kinda might be a recruiting violation.

One other thing from the story that's of interest. In the story, Chad Brown noted he had a 4-page checklist of what he was looking for from schools. Compare this to Willie Williams' published repots. Miami over FSU based on the October rain game, Miami over FSU based on the Orange Bowl, FSU dead even after the private jet and the lobster tails, Miami up again after head coach Coker picks him up in an Escalade. Perhaps there was more substance than came across in my mind, but my supposition would be that more recruits make their decision based on feel and rapport than a homo economicus footballus would.

Bedtime Reading

One of my longer-running habits is that I like to read something unrelated to whatever I've been doing right before I go to bed. Basically, that means non-law stuff. Lately it's been Geoffrey Parker's Success Is Never Final, a collection of essays about war, empire, and religion in Europe in the 16th and 17th centuries. One of the essays on religion looks at the church court in St. Andrews, Sctoland, in the late 16th century. Here's an excerpt as written in the book, complete with Scots English quotation:

In 1594, a young man found to have threatened his father was condemned to 'compeir in sek claith, beir heddit, and beir futtit, upon the hichest degre of the penitent stuill, with ane hammer in the ane hand and ane stane in the uther hand, as tua instrumentis quhairwith he meanssit his father, within ane pair writin in great letteris about his heid thir wordis: "BEHALD THE ONNATURALL SONE PUNISIT FOR PUTTING HAND IN HIS FATHER AND DISHONORING OF GOD IN HIM."'

I had to read that about three times to finally understand what was going on. That was one of the relatively few non-sex cases handled by the St. Andrews kirk. Most of their caseload was apparently fornication, fornication, adultery, and fornication, with Sabbath breach thrown in for good measure.

I'm not normally a fan of a collection of essays, since it often ends up being very in-depth portaits of very limited scope areas, which makes it difficult to generalize. That isn't untrue here, but the essays were written to stand alone, most in books written to be accessible to people who were non-specialists in the area, and I didn't find myself at all annoyed by herky-jerkiness without a sense of the whole as I often am. Much better than the latest from the Supreme Court.

Pomona Controversy Over Photograph Hunt

Eugene Volokh describes the controversy here (thanks to co-blogger Ben for the heads up), but I'll summarize it quickly: A Pomona College student-run photo scavenger hunt included taking pictures of at least 10 Asians. The school and many students seem to be pretty angry about it, and it looks like disciplinary action is coming for the students who designed the hunt.

Volokh notes that that disciplinary action is likely unconstitutional, but besides that, there's an underlying hypocrisy here.

An initial note: I highly doubt the photograph hunt was meant to be demeaning to Asians. However, if it was meant to treat them as similar to oddities in the scavenger hunt (for example: find me a heart-shaped rock, a four leaf clover, and a tall Asian person) then I can see how that would be a below-the-belt joke that no one appreciates.

But if it was simply meant to view them as a race rather than as simply people for the purposes of the hunt, this is exactly what the admissions office down the street does everyday. Admissions offices view race-as-race in their decisions constantly - they don’t care whether a Hispanic kid is poor, rich, interesting, or dull when they use race as a "tiebreaker" or as a "bonus" for admissions purposes. Many minority scholarships work the same way. Of course, Pomona may have already vetted its applicants for dullness or lack of motivation, but many schools don't. They simply view race-as-race and make their decisions, even the admit/not admit decision, accordingly.

Similarly, these students were just looking to treat Asian students as Asian for the purposes of the hunt. Does this make you uncomfortable? Then it should make you uncomfortable in the admissions context too. I'm certainly uncomfortable with both, though at least the Pomona students did it to be funny rather than to be “fair.”

But one might say: "the admissions office is looking to race to point out unique perspectives to bring to the table. It is important for the student body to represent all kinds of people, and without racial diversity we cannot hope to achieve this goal. The scavenger hunt, on the other hand, had no such inclinations. They simply wished to view people on purely-racial terms for their own enjoyment."

This line of thinking is insulting to racial minorities. Imagine again our rich, dull, Hispanic kid. He brings nothing to the table but his skin color. Yet, to the admissions office he fosters "diversity" and new points of view. If you believe this, you must believe that one's skin color is a proxy for their attitude and experiences. Note that this view cannot possibly be rectified with a color of their skin/content of their character distinction (yes, some of us still believe in this idea, and I think we’re in good company). To me, if a school is interested in targeting disadvantaged students, that's fine: provide an optional essay in which applicants may describe any significant life struggles (many schools do this already). If they want intellectual diversity, fine: ask the applicants to write a poem or opinion piece (many do this as well). But don't ask for an applicant's race – it tells you nothing more than what they’ll look like.

To the extent race affected how others looked at the applicant, and how that led them to get, say, a C in Chemistry, leave it to the essays. If a racial minority experienced truly unique and extraordinary adversity growing up, that should come out. A black kid that got beat up on his way to school everyday because of his race, and thus had a poor attendance record and mediocre grades, deserves to go to Pomona if he shows a twinkle of interest in learning. But he doesn’t deserve our help any more than the white kid from Hawaii who was beat up for the same reasons, a kid from California whose parents beat him up, or a kid from Ohio whose parents, teachers, and friends never paid enough attention to help him with his homework, let alone beat him up. On the other hand, if our rich, dull, Hispanic kid writes a pro forma "I’m writing to tell you I’m a minority and thus I’m inherently a victim" essay (see this NRO piece for a guideline on how to write such junk), hopefully his failings will come out too, and he’ll be summarily rejected if he’s not academically up to par.

Of course, this effort would require admissions officers who are actually committed to intellectual diversity. You know, as opposed to using diversity as a cover to suss out minorities and meet a quota and/or to assure themselves that they’re “good people” because all those minority kids (except Asians) need our help. What a silly and insulting way to approach a legitimate pursuit.

To conclude: whether you feel outraged about the Pomona situation or think everyone is being too uptight, remember this: the college admissions system is far worse, with far more serious implications.

Dean To End His Campaign

Associated Press

Looks like the DNC didn't appreciate his "suspend" idea, in which he would keep his name on the ballot just to siphon-off votes from Kerry and Edwards. Or maybe the Associated Press is simply inaccurate, and the suspend plan is still on. Either way, it will be interesting to see if Dean makes an endorsement soon.

If Dean is true to his principles, he should support Edwards - he's a bit more of an "ideas" candidate, while Kerry just campaigns on being electable, experienced, and a Vietnam vet, none of which has anything to do with how he views the country or where he wants to take it. Thus far, Kerry's ideas have been defined by negatives, not affirmative statements of principle. As in "I will not follow Bush's foreign policy," "I will not cause Americans to lose jobs by following Bush's economic policy," etc. Every candidate plays the "will not" game, but Dean had a few more ideas behind him, and Edwards does too (the have/have not divide, anti-free trade, ect). If I was Dean, I'd be annoyed that Democrats would rather have a candidate who is uncontroversial than a candidate who brings something new.

Plus, I don't think Dean likes Kerry very much personally, so endorsing Edwards might be easier for the Dean folks to swallow. It also makes the race a little more interesting.

Monday, February 16, 2004

Thinking About Class Actions Differently

Ok everyone, I must admit I’ve been a little slow posting lately, due to computer disasters, weekend distractions (good distractions, mind you), and scholastic duties. But as Congress once again considers changing how we handle class actions, this is a good time for me to drop everything and offer my unqualified opinion (pun intended) on what the new bill does, and what it doesn't do.

Basically, the new bill attempts to solve venue-shopping. Congress no longer believes the trial lawyers when they say that rural Illinois state courts are a good spot for class actions because of the need to support bridge-related tourism (especially since the bridges are in Iowa). Nor do they buy the line that rural Mississippi courthouses are the ideal place to cool-off and have a massive lawsuit over the summer. Politicians are so cynical.

The new FRCP 23 would permit removal for diversity if any named plaintiff is diverse with any defendant. Why not carefully select your named plaintiffs to avoid this rule? Because in many cases the typicality of claims requirement of FRCP 23(a) will require a large sampling of plaintiffs in order to represent different state laws.

The new Rule 23 also calculates the monetary requirement for federal subject-matter jurisdiction in a more intelligent fashion - instead of mapping the normal $75,000 requirement on to class actions (see Zahn v International Paper Co, 414 US 291 (1973)), the monetary requirement is evaluated in the aggregate - $5,000,000 total will suffice. This ensures that only relatively high-stakes (b)(3) cases reach the feds, though I'm not sure how this will work for (b)(2) cases (aka injunctive relief is sole/dominant request).

The district judges maintain some discretion over removal, answering concerns about cases in which the legal questions largely involve one state's law. Basically, if more than 1/3 of the class members are in the same state, the district judge can remand to that state court, and if more than 2/3 of the members are from the same state and one of the defendants is a citizen of the state as well, the district judge must remand.

There are other provisions besides these, and all of these potential rules are being tinkered with. But the final product should look something like what I've described.

More interesting to me is what the new Rule 23 doesn't do. First of all, the federal courts are still left with the common problem of conflicts of law between class members. See, for example, Philips Petroleum Co. v. Shutts, 472 US 797 (1985), Castano v American Tobacco Co., 84 F 3d 734 (5th Cir 1996). These cases essentially say that district courts can’t get creative in handling conflicts of law – it’s unacceptable to have the class consent to the law of a single state if they don’t have any real contacts with the chosen state or their law is materially different, and you can’t solve large-scale differences in law by subclassing under Rule 23(c)(4) either. Thus, these cases often end up back in various state courts.

This problem has the potential of defeat the new Rule 23’s purpose while helping no one – defendants don’t get the favorable forum of the federal system or the finality of a single suit, plaintiffs don’t get strength in numbers and top-level representation, and the court system loses the efficiency benefits of aggregation and consistency (though some feel class actions may not provide these benefits; see, for example, Bridgestone/Firestone, Inc., 288 F 3d 1012, 1020 (7th Cir 2002) (Easterbrook) (comparing aggregated class actions to central-planning models of governance)).

My personal view is that the problem ultimately lies with Erie. Allowing plaintiffs to consent to a single-system of law is like ad hoc federal common law. So long as we still believe that there’s value in having Nebraska plaintiffs governed by Nebraska agency concepts regardless of the forum, we can’t with a straight face say that these values aren’t implicated in the class action context and allow Louisiana law to apply to our Nebraskan.

But maybe we should just renounce Erie in the class action context. I think you could make a good argument that Erie is great when you’re dealing with one rule of decision, but when you’re dealing with a dozen, it might be better to let the parties chose one. After all, allowing the parties to chose answers Brandeis constitutional concern that federal courts do not have the power to make up law – the parties would be making the choice, not a district judge.

Of course, the parties will surely fight over which law is “most fair,” but as long as this adversarial setting leads to some law “in the middle,” I think the results will be reasonable, and plaintiffs won’t have an incentive to conspire to create federal jurisdiction – they won’t know what rule they’ll get. Plus, this system will also be consistent with the logic of Erie - the conspiracy problem of Black and White Taxicab v Brown and Yellow Taxicab, 276 US 518 (1928) that Brandeis worried about in Erie is avoided on both fronts: the new Rule 23 keeps diversity issues from allowing plaintiffs to gerrymander a state forum, while the uncertainty of law in the federal forum (combined with the less-favorable procedural rules and juries) will keep unworthy plaintiffs from the district courts.

I’ll keep my analysis short on the second problem the new Rule 23 doesn’t address. Suffice it to say, the whole class action system is premised on a big lie: the class representatives are like real clients, making decisions on behalf of the class, taking an active role in the litigation, and looking to enforce their rights. In reality, many class representatives are props for the trial lawyers, often are the most sympathetic cases (and thus provide a misleading view of the class), and many are even repeat players used over and over again by the same firms (this is a favorite technique of top class action firm Milberg Weiss, according to this Forbes piece). Given these realities, why have class representatives at all?

Abolishing the class representative isn’t as radical as it seems. After all, corporations fight for consumer interests in the unfair competition arena under the Lanham Act. This is ok because the corporations’ and the public’s incentives are aligned – corporations want their rivals to pay, and the public wants truthful advertising. In the class action context, attorneys and class members have similar interests too – both want to maximize the judgment in their favor. To the extent we’re worried that lawyers will abuse this system by taking all the money for themselves, we must remember that a district judge acts as a fiduciary for the unnamed class members in a class action, and that the current system of class representatives hasn’t exactly reigned-in lawyers' fees. Thus, allowing the district judge to act as a fiduciary for the entire class would allow a more-informed individual to assess the distribution of fees, while freeing trial lawyers from the class representative farce. As a side benefit, this would destroy the class representative diversity jurisdiction game.

Still think me crazy? Well, Judge Posner agrees with me. This will either calm your fears or bolster your argument, depending on whether you’re from the University of Chicago or not. Quote:

“For purposes of determining whether the class representative is an adequate representative of the members of the class, the performance of the class lawyer is inseparable from that of the class representative. This is so because even when the class representative has some stake (unlike Culver), it is usually very small in relation to the stakes of the class as a whole, magnifying the role of the class lawyer and making him (or in this case her) realistically a principal. Indeed the principal. When we said earlier in this opinion that ‘Culver has done nothing to move the case forward except to file a flurry of frivolous motions’ and remarked ‘the lack of energy with which he [Culver] has performed his function of class representative’ and that the courts and Congress had refused as yet to rule that ‘the requirement that a class action, like any other suit, have a plaintiff is to be dropped and the class lawyer recognized as the true plaintiff,’ realists reading this opinion no doubt sniggered. All Culver's moves in this suit were almost certainly the lawyer's. Realistically, functionally, practically, she is the class representative, not he. ‘Experience teaches that it is counsel for the class representative and not the named parties, who direct and manage these actions. Every experienced federal judge knows that any statements to the contrary is [sic] sheer sophistry.’”

Culver v City of Milwaukee, 277 F 3d 908, 913 (7th Cir 2002).

Saturday, February 14, 2004

College Football and the Law

No, Maurice Clarett is not the only person not playing college football to have some current legal issues. Willie Williams was once merely star linebacker Miami (FL) recruit, and teller of a number of enjoyable recruiting tales (see Florida State, Auburn, Miami, Florida, but also see NCAA bylaw 13.5.1 (hat tip to SI's Mike Fish)). Alas, now he is under more scrutiny for what his Florida report didn't include, like getting drunk and setting off fire extinguishers at 4 A.M. Of course, these are minor offenses, just like smashing a window and taking $3800 worth of stereo equipment, not that such a thing would prevent someone like Paul Moore from regarding Williams as presidential material. After all, if we've had a perjurer, why not a thief?

Bestsellers of the 20th Century

1900-1998 Lists

My first semi-substantive post, hopefully I don't screw this up too badly. Anyway, this is a listing of Publisher's Weekly's bestselling book going back to 1900. It's pretty interesting to see how much tastes have and haven't changed. I'm afraid the oldest book on the lists I've actually read is Main Street by Sinclair Lewis (1921, #1), though the nonfiction list doesn't go all the way back to 1900.

Even as to more recent authors, it's interesting to see how careers have progressed and how much success people have, and haven't, had. To use a personal favorite as an example, take Frederick Forsyth. The Day of the Jackal was No. 4 in 1971 and 1972, The Odessa File, probably my personal favorite, No. 3 in 1972 and No. 4 in 1973, The Dogs of War No. 6 in 1974, The Devil's Alternative No. 8 in 1980, and The Fourth Protocal coming in at No. 7 in 1984. Add in The Fist of God, which I highly enjoyed, and his older collection of short stories, No Comebacks, and what sort of career does that make? Is he the new Joseph Conrad, someone esteemed by some, but, as some critics said when 4 of Conrad's novels made the Modern Library 100 Best Books list, someone with some talents but ultimately a writer of boy's tales? Or will enjoying a measure of popular success be his undoing? Well, time will tell.

Amazon Glitch Unmasks War of Reviewers

New York Times

"Close observers of noticed something peculiar this week: the company's Canadian site had suddenly revealed the identities of thousands of people who had anonymously posted book reviews on the United States site under signatures like 'a reader from New York.'

The weeklong glitch, which Amazon fixed after outed reviewers complained, provided a rare glimpse at how writers and readers are wielding the online reviews as a tool to promote or pan a book — when they think no one is watching.

John Rechy, author of the best-selling 1963 novel 'City of Night' and winner of the PEN-USA West lifetime achievement award, is one of several prominent authors who have apparently pseudonymously written themselves five-star reviews, Amazon's highest rating. Mr. Rechy, who laughed about it when approached, sees it as a means to survival when online stars mean sales."

You can trust me when I say that this site's authors will never succumb to such self-flattery, even if we're certain we can totally get away with it.

Thursday, February 12, 2004

Kerry Concerns

I don't link to the Drudge Report because I don't find it reliable (not to mention it's unflinchingly partisan), and I'm not about to start now. Needless to say, he's got some information on Kerry over there that implies a sex scandal is about to break out in the coming days. Instead of linking to Drudge, here's a link to The Corner's analysis of the situation, which is both critical of, and much calmer than, Drudge's. If this story pans out, I'll have a few insights that might (gasp!) be interesting.

Side note: since I'm a novice at editorial discretion, feel free to comment and let me know if my linking policy is stupid, pointless, etc. I recognize it might be just as unprincipled to split the difference and post on a report but not provide a link. Plus, one of the internet's strengths is that it allows people to receive information without relying on the major media outlets, which often ignore, miss, or spin things. But unsubstantiated information is one of the internet's weaknesses. I just find linking to speculation a little distasteful - Instapundit links to speculation all the time, and I think it hurts his credibility a little bit. But I understand his approach: I too have an impulse to get things out to our million-plus readers as soon as possible, and let them decide. Or as Fox News would put it: We Report, You Decide. But We'll Help.

Plus, I have no credibility to lose. How liberating. Almost makes me want to run for president.

Wednesday, February 11, 2004

The Guest

Yes, I'm Tom, the long-promised guest blogger. I would have posted earlier, but I had to reinstall Windows and reinstalling Windows (and then all the various programs) is a long and annoying process. I'll have more content soon (note that soon is a word with no legal meaning).

College-Sponsored Student Sex Magazines

The Corner noted that Harvard is giving the initial go-ahead for "a student-run magazine that will feature nude pictures of Harvard undergraduates and articles about sexual issues at its meeting yesterday."

This magazine will be in the same vein as Squirm, Vassar's "magazine of smut and sensibility" that is "an intelligent and provocative exploration of sex and sexual pleaure." Apparently "pleaure" is some new kind of pleasure for those with speech impediments.

It's times like these when I feel the world may have passed me by. It's just incomprehensible to me why a school would want to sponsor this sort of publication. I know it's not just porn, but I'm sure that's the main attraction. Essentially, the school is condoning a magazine dedicated to arousing it's students (some of which surely aren't even 18 yet) sexually. I wouldn't want my tuition go to a publication like this. I think it's fine if these kids want to do this on their own - I'm sure there are lots of people dying to see "barely-legal college girls bearing it all" - but I don't think it should get a school's stamp of approval. To me, this is one of those common campus situations in which everyone is really, really liberal, and there's virtually no other voices to mediate the discussion. It's like when certain Ninth Circuit judges get on the same panel together - anything goes. Or so we at the Chicago Judges Project think!

Tuesday, February 10, 2004

Wesley Clark Drops Out of the Race

Associated Press

A little premature I think. He still had a chance of beating Carol Mosely Braun in the long run.

Update: Here's his Opinionjournal bye-ku:

Did I just get a
Dishonorable discharge
Or did I desert?

Check out this and other bye-ku's here.

Announcing A Guest Blogger

Tom, of commenting fame, is guest blogging on the site this week. This is a particularly good week for his help, since I don't have a working computer of my own until my new hard drive is up and running. Welcome.

Sunday, February 08, 2004

A Sign that Clark Will Not Be The Nominee

Clark finished sixth in my home state of Washington yesterday. Who finished fifth?

Carol Mosely Braun. Ouch.

Saturday, February 07, 2004

Another Reader Challenge: Most Extensive Education

So I was checking around Lexis when I ran across this law review article: Linz Audain, Critical Cultural Law and Economics, the Culture of Deindividualization, the Paradox of Blackness, 70 Ind L J 709 (1995). Quite a title, I know. I can find a million more that are just like it - just replace words like "culture" with "dependency" or "victimhood," make up your own word signifying that someone is oppressed, and add some kind of child-like question at the end and you have yourself a family law article. For example, my article would be called Critical Legal Deconstruction of Paternalism, the Dependency of Ecclesiastical and Rabbinical Law, and the Victimization of Transgendered Marginorities in Adoption: Why do a priest, a rabbi, and daddy hate me?

Actually, I didn't make up "Marginorities"; it's a term some of these writers actually use. It's way funnier than anything I could come up with.

But that's not my point. My point is to flatter the author, actually. Check out his credentials:

Associate Professor of Law, Washington College of Law, The American University. M.D. Candidate, Howard University; Ph.D., Duke University; J.D., The University of Chicago; M.S.M., Florida International University; M.B.A./M.A., University of Miami; B.A., Southern College.

How many degrees is that? Seven, including a law degree, a PhD, and an MD, or "the trifecta." He's not a member of a profession; he's a member of every profession. He even went ahead an got an MBA, just to, you know, be practical. Plus he went to U of C Law, so I must give him props for that - with the Chicago Law 2x multiplier he's now up to fourteen degrees. But seriously, can anyone beat this?

Kerry's Special Friends, by David Brooks

New York Times

I bring this to your attention not as a "gotcha" to John Kerry for serving special interests. The special interests game is basically a wash for all politicians, though Kerry might tend towards the extreme. Instead, this op-ed is worthly of note because it contains the following phrases: "little dollies," "most specialest interest in the world," "rainbows or kittens or Chinese long-range missile designs," and "the cuddly kind of loophole you can hold under the blankets and tell your secrets to late at night."

Special interests don't seem so bad now, do they?

Hyperlink Technology

Working with blogger, it's become apparent to me the limits of linking. For example, say I want to link to some news blogging sites. I write "If you want to check out some more news sites, click here." Unfortunately, "here" only takes you to one site. Now, that site could be a compilation of links to news blogging sites, but often such a linking site doesn't exist for my subject or doesn't include all of the sites I want to link to. Often I'd just be better off listing the different sites in the text of my post and linking to them individually, taking up a lot of screen space, which the reader is forced to sift through even if they weren't interested in the link in the first place.

This seems to me a flaw, or at least a place for much improvement, in internet technology. I'd like to see a technology in which passing the cursor over a link spawns a small, semi-transparent window with multiple links, short descriptions of them, or even portions of the site to which they are linking. That way you could link by subject-matter, rather than by site, while getting a preview of what you might experience if you were to click. More information would pass to the interested reader more quickly and efficiently, while freeing up text space for those not interested in the link.

Just a thought.

Interesting Artifact

Actually, this whole post will probably only be interesting to Ben, Lauren, and me. Or maybe just me. It's a part of our recent Claremont series, so beware.

Anyway, believe it or not, I ran across this tonight while on official business (my late-night citechecking run). It's an LA Times article on the appointment of Pamela Gann to the presidency of CMC. Here's a snippet:

"Her appointment set faculty members abuzz, but not because she's the first woman to lead the 52-year-old institution that went coed in 1976 and later changed its name from Claremont Men's College. Rather the conservative professors unearthed evidence that she might be--gasp!--a Democrat.

. . .

For the record, Gann confirms she's a registered Democrat. But, she said, 'I separate out my personal politics from my work.'"

It's funny how controversial her appointment was. It was all anyone could talk about. Jack Stark was such an institution, and to be replaced by a Democrat who isn't even an alum was just too much to take. Plus, the next year our US News ranking dropped from 9th to 17th. Women! Or, alternatively, Democrats! Or, better yet, Democratic women!

I kid the Democratic women; they make up much of this site's audience.

Here's more:

"Gann was drawn to Claremont McKenna because, in her words, this and the four other undergraduate colleges in the Claremont consortium 'is the most important place working on undergraduate education west of the Mississippi.'

In her 11 years as Duke law dean, Gann said she discovered the best educated law students came from highly selective liberal arts colleges, not from big research universities.

'So that's the place to be, not a place like Duke,' she said."

Ouch. That's harsh. But I must admit, Ben and I were just discussing this tonight. Liberal arts colleges are way overrepresented at U of C Law. CMC is particularly well-represented - I believe there's six of us attending at the moment. Does this make us artsy-smartsy kids a higher breed? Well, no, not in my experience. I've been impressed by many a university kid thus far, and even the occasional Duke alum (Yes you, Greg. I flatter him because he's a reader. Really should've read that supplement for Con Law though. Goodness knows all the rest of us do. Or would, if we owned it). At least we liberal arts kids can always pretend we're the master race. A few years at a liberal arts college teaches you how to play pretend like a pro.

Back on track: the Duke comment makes me wonder: what will Gann say when she leaves CMC? After all, rumor has it she wanted the University of Michigan presidency, which opened up last year when Bollinger went to Columbia. I can imagine her story: "All I said is that Duke sucks, and Claremont is the best place to be west of the Mississippi. Michigan is east of the Mississippi and not Duke. Sure, all of Duke's (supposed) weaknesses apply a fortiori to Michigan, but Michigan has a better football team. It even arguably has a better football team than CMC, and at least Michigan's kids aren't fascists." Curse you, pretend Gann!

I could stop the post here, but how could I? The Times hasn't even quoted Pitney yet!

"Inspired by England's Oxford University, Claremont McKenna and each of the prestigious schools in Claremont--Pomona, Pitzer, Scripps and Harvey Mudd--offer the cozy academic environment of a small college, but the intellectual vibrancy of a large campus. Students can select classes from any other institutions.

Claremont McKenna, with about 1,000 students, advertises its education as the training of future business and political leaders. 'A good fraction of our students go on to law school,' said government professor Jack Pitney."

I've heard that.

Why not more, just for the heck of it:

"Claremont McKenna's reputation as a conservative school comes in part from some of its most visible alumni: Republican congressman David Dreier, former Assembly GOP Leader Rob Hurtt, top aides to Kenneth Starr, Newt Gingrich and Pete Wilson.

But [Ralph] Rossum and other faculty members point out that Claremont McKenna is not replete with conservatives--a survey conducted by students showed that most faculty members are Democrats. Instead, he said, its conservative image rises from the fact that unlike most elite colleges, its faculty has more than just a few token conservative professors."

My challenge to everyone (aka Ben or Tom): name another school, UG, PhD, Law, or otherwise, besides CMC and U of C Law, whose faculty isn't dominated by Republicans (so no Hillsdale or Ave Maria) and yet has a critical mass of them (let's apply the Michigan system and say about 30%). The time is 3 AM. Go!

Thursday, February 05, 2004

The Kennewick Man's Not-So-Speedy Trial

As the Claremont Institute put it:

"Kennewick man does not belong to a current Indian tribe and thus can be studied by scientists. Kennewick man waited 9200 years for the 9th circuit to get a decision right."

I felt I should post on this because I've actually been to Kennewick, and thus have actually witnessed many a Kennewick man in person. Lesson time: Kennewick is a part of what we Washingtonians like to call the "Tri-Cities" area. You see, Pasco, Richland, and Kennewick all strattle the Columbia River in the southeastern region of Washington. This area was really quite famous even before the Kennewick man. What are the Tri-Cities' claims to fame? Well, besides being the home of famed sci-fi writer Orson Scott Card, it's the home of the nation's largest repository of nuclear waste. What's the nearest metro area to the Tri-Cities? You guessed it, Yakima. You probably didn't guess it, I know. You probably haven't read this far.

I think it's now fair to say that this site is your best source for coverage of the Kucinich campaign and news from the Tri-Cities. I do it for you.

Wednesday, February 04, 2004

Gays Have Full Marriage Rights, Massachusetts Court Says

New York Times

My problem with this advisory opinion is basically the same as my problem with the real opinion:

If the Supreme Court of Massachusetts wants to be activist in the name of rights, at least do it with your jurisprudential standards first. Declare that laws discriminating on the basis of sexual orientation are now subject to strict scrutiny. But don't say that's there's no rational basis for a law protecting the sanctity of marriage between a man and a woman. That's just dishonest.

I think the opinion would be much more effective if it read something like "there are rational arguments on both sides of this issue. Homosexuals are fighting for their rights. They feel they are treated as second-class citizens who are denied benefits because of their private sexual behavior. On the other side, our society has a long tradition of promoting marriage between a man and a woman for social and religious purposes. Moreover, the Massachusetts legislature believes that traditional marriage 'support[s] a family setting' that is 'optimal for child rearing.' Unfortunately, the state's arguments do not rise to the level of a compelling interest such that homosexuals' desire for equal legal status can be subordinated. In other words, tie goes to the bi."

Ok, so that last part wasn't very judicial. And I'm sure many of the interested parties aren't bi. But it's still better than this fluff from the original opinion:

"The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of courts to determine whether these criteria are met and whether these limits are exceeded. In most instances, these limits are defined by whether a rational basis exists to conclude that legislation will bring about a rational result. The Legislature in the first instance, and the courts in the last instance, must ascertain whether such a rational basis exists. To label the court's role as usurping that of the Legislature, see, e.g., post at (Cordy, J., dissenting), is to misunderstand the nature and purpose of judicial review. We owe great deference to the Legislature to decide social and policy issues, but it is the traditional and settled role of courts to decide constitutional issues."

Wow, good thing you guys have the right to decide constitutional issues! That was a real life saver for your argument! Sure, the rational basis test involves the court examining whether "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class" and a bunch of lawmakers think it does, and you think it doesn't, so you say they lose. But that's not usurping the legislature's role because you have the power to "settle constitutional issues." I guess the phrase speaks for itself. Unfortunately, it doesn't say anything.

Two other small things: It's very weird to read a self-proclaimed "advisory opinion." I've randomly come across other Massachusetts advisory opinions, but I've never see this from any other state supreme court. I'm sure it's out there, but perhaps Massachusetts does this more than other states.

Also, I think it's interesting no federal constitutional issues were brought up. But you can see why: now the decision is unreviewable, because the court didn't decide the case on federal constitutional grounds. I can see why the plaintiffs wanted it this way: the Supreme Court hadn't decided Lawrence when the lawsuit was brought, and even if it had, the court's composition could change by the time it heard the case. This is the essence of the well-pleaded complaint rule (check out a recent Supreme Court case on the rule here). Well pled.

20 (fake) Questions

If you haven't done so yet, check out Jeremy Blachman's parody of Howard Bashman's "20 Questions for an Appellate Judge." See Blachman here. See Bashman's real 20 Questions here. My favorites:

10. What is your view concerning whether the Ninth Circuit should be split into two or more circuits, and how do you respond to the reasons favoring a split that others have raised?

I fully support any opportunity my colleagues might have to move up in the pecking order. If splitting the ninth circuit, would allow some of those judges to be promoted to the eighth circuit, or even the seventh circuit, and open up a spot for me to be promoted to the ninth circuit, I am all in favor. I believe we've been too slow to promote those judges who everyone acknowledges are excellent to better and better circuits. My good friend on the Third Circuit should at least be on the Second Circuit, if not the First Circuit. I believe we should create the strongest bench we can, for when we go up against the Canadian judges in softball games.


13. How did you happen to become Judge Posner's close friend, what interests do you have in common with him, and how do you avoid letting the major disagreements the two of you have had over cases from becoming personal?

Judge Posner always pays for lunch. I wish he would work harder and write more books.

Tuesday, February 03, 2004

A Super Tuesday . . . for Some

So anyway, without Newzcrawler I'm in a bit of an information void, but I do know that Kerry did well today, and Edwards stayed alive. Yep, that's all Edwards did. Winning South Carolina was the bare minimum he could do to be a viable candidate, so let's not get too excited about him at this point.

Now it's obvious that Kerry/Edwards would be a strong ticket, because if Edwards could bring in a few southern states, that might be all that's needed in a close election. Of course, many political scientists and pollsters will tell you that the vice presidential choice means almost nothing in the end, but whatever small aid Edwards would bring could be useful.

However, Edwards said point-blank on Fox News tonight that he doesn't want to be Kerry's vice presidential nominee. That could be taken to mean "Well, I'd prefer not to be vice president, because I'd rather be president, if you hadn't noticed. But if push comes to shove, I don't have a senate seat to go back to, so why not?" But I don't think that's what he's saying. I think Edwards has different plans. I think he knows that being Kerry's vice president means that he must wait in the wings for a few years, doing nothing much, only to play a guessing game with Hillary when he's done. I could see Edwards thinking it isn't worth it, and it's better to go president-or-bust now, and do something else if he fails.

Dean's on his dying breath. I think it's bascially over. I watched him on Meet the Press on Sunday, and this was a desperate man. It was one hour of Dean telling you he could still win, but not giving any real reason why. He couldn't say with a straight face he was going to win anything today, but he did say things like "I'm going to win overall because I have a real message" or "I'm going to win by stealing delegates away with strong finishes everywhere" (I'm paraphrasing). So much for that. How many delegates did he pick up today, less than 5? Perhaps none? The best he can hope for is some bargaining power at the convention. The Dean experiment, as Dean-O-Phobe said, is dead. But the New York Times thinks he still has a "small window", so what do I know.

Wes Clark isn't fairing much better. He might even lose his own state (though it looks like he'll win Oklahoma by less than 1%). Then again, he peaked a while ago, and his peak wasn't very high. I guess you can only expect so much from a philanderling nit-wit with only superficial attractiveness (as Peggy Noonan sees him). But if Noonan's right, one can see why he won the Madonna and Michael Moore vote. Are they delegates? No? Well, I'm sure they're Super Delegates in their own mind.

If Dean's on his last breath, Lieberman already had a Costco parking lot paved over his grave site. Apparently my Arizona theory was wrong, because he didn't do too well there. This stands in opposition to his real focus, Delaware, where he only lost by 40%. But at least he can rightfully claim his "three-way-tie" in that regard.

Watching Lieberman's exit speech, it really hit home why his turn-out was not simply bad (being a lone voice on the other side of a rift in your party is never good news), but piss poor. He's just too nice, as many commentators noted. When Lieberman says "I stand for a strong national defense," he says it with an inflection that reminds me of Ned Flanders coaching little leaguers. I almost expect him to give a cute "grrrr" at the end, as if to say, "yeah, I'm a tough soccer-dad! Now let's all go for ice cream!"

Kucinich is still hoping for the cuban vote. Not cuban-americans, mind you. I'm thinking more like Castro.

And last, and least, is Al Sharpton. He's still looking for a delegate so he can trade him or her for influence. Tell you what Al, I'll give you a ham sandwich for your delegate if you get one. As Fred Barnes put it, "Al Sharpton is no Jesse Jackson." Which, coming from Fred Barnes, is like saying "Barry Manilow is no Liberace."

Speaking of Liberace, hope everyone had a super Tuesday, with more super tuesdays to come.

As Ben said . . .

My hard drive is on the fritz. The Ben household graciously gave me a hot temp computer, however. Actually, "hot temp" probably isn't the best description - "experienced, reliable, middle aged mother of 3" is probably more accurate. Which is even better, really, since I do all my blogging in Q-Basic. But seriously, thanks to the Bens for coming though.

Sunday, February 01, 2004

Blogging the Super Bowl

Why watch the Super Bowl when you can watch someone blog the Super Bowl? I can think of a few reasons. (from Instapundit)

U of C Economist Wins Clark Medal

Professor Steven Levitt wins what many consider the top prize in economics. The Economist (via Paul Krugman) notes that "this award says more about the winner's excellence as an economist than does the better known, but rather less exclusive, Nobel prize. That honour, after all, is sprayed out every single year, often to more than one winner, and decades after the laureates have done their best work. Look to the Clark medal to see who is really at the top of the field, here and now."

Kind of sounds like that prize that teacher in Good Will Hunting won. It seemed really important in that movie, and since Paul Krugman thinks it's important, it must be. One can always count on Paul Krugman for an unbiased assessment, particularly of something he won.

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