PrawfsBlawg

Disneyland and property rights in tickets

Due to a family matter, I had to head down to Los Angeles last week, so naturally my wife and I took our two little boys to Disneyland as well.  While there, the following two possibly analogous incidents occurred that got me thinking about property rights in tickets.

The first was that we decided to go on California Soarin' (in California Adventures), which is kind of a flight simulator ride with a big curved screen and suspended roller coaster-like seats that tilt with the picture to enhance the feeling of motion.  It's a popular ride, so the line gets long, and it's also one of the rides that Disney offers "Fastpass" to mitigate lines for those willing to work.  The way Fastpass works is that you insert your park entry card into a machine near the ride, and the machine gives you back your entry card and a ride ticket.  The catch is that the ride ticket lets you bypass the "standby" line only for a one-hour period, and that one-hour period is in the future.  So, if you visited the Fastpass machine at 10 am, you might be given a return window of 12 noon to 1 pm.

Anyway, we decided to brave the approximately 45 minute stand-by line, but as we were walking up to the end of the line, a woman approached us, asked if we were going to ride Soarin', and when we said we were, she gave us her Fastpass tickets, which we about to become valid.  Woo hoo!  So instead of having to wait 45-55 minutes, we bypassed the long line and had about a 5 minute wait (basically for the designated simulator to clear out).  I'll get to the potential issues involved in a moment.

The second incident occurred later that same day.  As we were exiting the park (well before closing time), a young woman approached us and asked if we were leaving.  When we said we were, she asked, "Can I have your tickets?"  Naturally, we refused.  It would have been pointless, since the regular Disneyland tickets require a valid hand-stamp for re-entry that day, and you can only get a hand-stamp if you've already been in a park, which of course requires that you already have had a ticket.

Nevertheless, the woman's request struck me as quite wrong for reasons beyond the pragmatic.  It would represent revenue loss to Disneyland, since the only other way she could get in would be to buy a ticket.  But then I started wondering about how I was able to Fastpass the Soarin' ride.  The lawyerly side of me could respond that there was no revenue loss to Disneyland, since the Fastpasses are free (but you essentially can only have one active at a time).  Therefore the situations are completely different.  And from Disneyland's perspective, I would think that is right.  On the other hand, I suppose the other customers waiting in the stand-by line might have had a complaint, since we (marginally) extended their wait, which would not have happened had we gone through the stand-by line.  Then again, the customers were no worse off than if the original Fastpassing woman had used her Fastpass instead of giving it to us, and one can wonder why those customers would care who imposed the marginal increase in wait time. . . .

Advice for Those Travelers with Bottles of Palinka or Other Souvenir Spirits, and Observations on the Endowment Effect

You have already checked your bags and gone through security in an airport in Europe such as Budapest's Ferihegy Airport.  You have 7,000 or so Hungarian forints ($35) just burning a hole in your pocket, so you decide to invest in a bottle of Zwack Sándor Nemes Pálinka (barack flavor - and that's not a tribute to our President - it's Hungarian for apricot, pronounced "bar-RATZK"), which you have sampled, and find to be a delightful way to anticipate your gulyas or your csirke paprikas. 

Being a thinking type, you say to yourself, "ah, but this is more than three ounces of liquid."  If I don't have a problem until I clear customs in Detroit, I can put it in my suitcase for the last leg to Traverse City."  The only issue will be if there is any problem in Amsterdam.  You say to the clerk in the duty-free store, "Will I have any problem with this in Amsterdam?"  To which the response is, of course, "no."

Learn from my experience.  There is a problem in Amsterdam.  If you are getting on an international flight from Schiphol Airport's international side, you will have to do a carry-on security check at the gate, and which point the security people will tell you that you cannot carry on your pálinka unless you bought it in the duty-free shop at Schiphol Airport, and that they confiscate dozens of bottles of booze and wine daily from travelers changing planes in Amsterdam, having bought the stuff in Prague, Budapest, Warsaw, or whereever (which they probably resell in the Schiphol duty free shop!). 

This, by the way, is what the behaviorial psychologists and economists call the "endowment effect."  Once something is ours, it takes on a value far beyond its cash value, merely because it is ours.  Experiments have shown that if you give a group of people equally worthless kewpie dolls, and then ask them to trade them, generally they won't, at least straight up, because each person's kewpie doll takes on a value to its new owner that is something more than worthless.  Suffice it to say that I did manage to repack my backpack and check it at the gate, and complete my plan in Detroit, but I was the last person to get seated on the plane as I negotiated to save the pálinka, and in good old-fashioned irrational actor fashion, for just a moment contemplated blowing hundreds of dollars missing my flight just to make a point about what a stupid rule it was.

Rex v. Djinn

A couple years ago in this space, I wrote about the now-defunct historical practice of haling non-human animals into court for offenses as varied as destroying crops, attacking humans, and even (ew) adultery. This practice raised lots of interesting questions about legal status, but was mostly a historical footnote, and I figured that the practice of suing non-humans (aside from rights-bearing legal fictions like corporations) was more or less defunct. Turns out, not so much. Today, I ran across this news item about a pending case in Saudi Arabia in which a family filed suit against a genie that has allegedly been harassing them for a couple years (making creepy noises, leaving threatening voicemails, throwing rocks, etc.).

The mind boggles at the legal difficulties raised by the case. How will the family serve process on the genie? If the genie fails to show up in court, and the family gets a default judgment, how will they collect? (Presumably the genie can use his magical powers to conjure up plenty of cash to satisfy the judgment.) Or does the suit seek injunctive relief? This case represents good news for legal academics, too. The field of genie law is significantly under-written (no articles on Westlaw based on a very cursory search), so the lawsuit should provide lots of fodder for novel scholarship.

Happy Fourth of July!

I have a British son-in-law, Simon, whom we all love very much, but it makes for a fun Independence Day.

The call went like this:

Jeff:  "We were thinking of you, Simon, on this day on which we celebrate throwing off the yoke of tyranny."

Simon:  "Shut up and pay your taxes."

Jeff:  "I will throw a teabag in the sink in your honor."

Great Idea of the Day

Fly a large airplane in the morning over lower Manhattan with a fighter jet escort, all for "photo-ops," and with no advance notice to the public. As a Newsweek blog described it, "Air Force One Photo-Op Scares the Crap Out of Manhattan."

How Can I Be Unconstitutional in Daily Life?

Have you ever done anything illegal? It’s not difficult. There are about a million laws you can break. You could throw a snowball at your friend in Topeka, Kansas. Even if it’s on your own property, you could land upwards of five months in jail. See Code of the City of Topeka, Kan. §§ 1-7, 54-123.

But what if you wake up in the morning, and you want to do something unconstitutional? If you’re not the president, your opportunities are limited. Nonetheless, doing something unconstitutional is not out of the reach of the common citizen.

Take a six pack of beer out of your refrigerator in Manhattan, and then drive through the Lincoln Tunnel to New Jersey in order to give it to your underage cousin. That’s not only illegal, it’s actually unconstitutional.

The 21st Amendment, which repealed prohibition, provides: “The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

So there’s your con law fun fact of the day. (And it’s yet another reason to actually assign the Constitution as reading in your Constitutional Law class.)

"I'm bored."

Whenever I have heard these words from my older daughter, I dutifully have responded by trying to motivate her to find productive ways not to be bored. Apparently, though, I instead could respond, "That's OK, sweetheart, it's just your internal SPAM filter kicking in." Ah, if only my own parents could have understood ...

Taking Law Lightly

Howard’s very interesting post from a couple days ago spurred me to think more about the style of legal writing more generally. I suspect I’m not alone in thinking that most legal writing, however smart and insightful it might be is … well, rather dry. That’s not to say the subject matter is necessarily dull, and if you’re interested in what you’re reading, it may engage you regardless of tone and style. On the other hand, if you’re reading a paper or an opinion because you have to, it can seem like a real chore, and I think this is in large part because the standard tone of legal writing tends to be ruthlessly expository—or less charitably, as arid as the Sahara. (And this is certainly something of which I have been guilty, as I often realize when going back over my own work.)

So does this mean humor is the way to vivify what can be a moribund style of writing, in opinions, or briefs, or articles? For a couple of reasons, I am skeptical. For one thing, judges may be able to get away with it because they’re often the final word on any given subject, but lawyers writing briefs and academics writing papers can’t take that chance, because there’s every chance that the judge or colleague whose evaluation is crucial to their success will find the humor inappropriate, and take a dim view of the work. (Especially true given the risk-averse breed that law folks are.)

There’s another reason it may not be a good idea, as some commenters in Howard’s thread gestured at. There’s something invariably demeaning about having an authority crack wise while also rejecting or challenging your position. So even if that overly long complaint really is frivolous, to set it aside with a joke means not only that you’ve lost, but that you haven’t even merited being taken as seriously as other litigants. I experienced a variation on this during this past year, when I found that students liked my sense of humor okay when I was making fun of the litigants in a case or, better, of myself (easy targets are always appealing). By contrast, any wisecrack made when I was answering a student’s question tended to meet with a chilly reception. Even though I never made a joke at a particular student’s expense, the idea that I was being even a little facetious gave some students the (mis)impression that I wasn’t taking their inquiry seriously. So perhaps there are contexts in which humor, however humane and well-meaning, just doesn’t work (e.g., “Your death penalty appeal merits only rejection/Go get in line for your lethal injection.”).

But the final, and in my mind the most compelling, reason to avoid humor in legal settings is that it’s usually just awful. One familiar form of legal humor isn’t really humor at all, but more a form of self-identification. Putting a Death Cab lyric (or Star Trek reference or Lebowski quote) into the footnote of your latest article on Hamdan is usually a stretch, and is less funny than merely a way to signal to your audience that you’re a hipster (or Trekkie, or Lebowski fan). As for the rest—the opinions written as Dr. Seuss rhymes or what have you—they generally seem to me more corny than actually funny. To use an Office analogy, they’re more in the vein of Michael Scott than Jim Halpert. It may be because in most legal writing there’s no room for the kind of twisted ironic sensibility that makes humor work. Really good humor has to be surprising and weird and not terribly serious, while law is, at its core, a pretty serious endeavor. The reasoning is often challenging, and a lot hangs in the balance (for lawyers and judges, though perhaps not for academics), so briefs and opinions and articles have to be crystal-clear first and foremost, and the best way to do that is to be expository and nothing more. Plus, the plain truth is that humor is not the gift of most law folks, just as most poets would likely not pass the bar and most comedians would struggle to write a passable villanelle.

And yet this is all unhelpful in thinking about the problem of legal writing’s lack of zazz. (Or am I wrong in thinking this? Is there zazz there that I just don’t see? Perhaps others are sufficiently entranced by their love for law that the love itself is zazz enough for them.) To be fair, some writers manage to persuade but do so with grace and style. I invariably find Carol Rose’s writing a delight to read, and Kozinski’s opinions are undoubtedly full of life (regardless of whether one agrees with him). What these authors share seems to be a willingness to deviate a bit from the traditional strictures of legal writing (admittedly a scary prospect for a pre-tenure academic, or a lawyer composing a brief for a yet-to-be-named panel of judges) as well as a willingness to infuse their work with something of their personal style (rather than blindly imitating the expository style that sucks most legal writers in like a tractor beam). This approach takes some courage and extra effort, but then again, as the man says, no guts, no glory.

Enforcing the Federal Rules in Rhyme

From NPR comes this story of Judge Ronald Leighton of the United States District Court for the Western District of Washington, who sua sponte dismissed (and ordered refiling of) a 465-page complaint as follows:

"Plaintiff has a great deal to say
but it seems he skipped Rule 8-a.
Hiis complaint is too long, which renders it wrong.
Please rewrite and refile today.

Two questions:

1) Is this sort of light-hearted, not-quite-serious, jocular approach from a judge appropriate? This question arises frequently whenever judges throw humor (jokes, rhymes, tangents about sports, entertainment, pop-culture references, etc.) into their opinions--how much creative license are judges allowed in their writing?

2) Was Judge Leighton correct to dismiss an overly long complaint simply because it was overly long? Rule 8(a)(2) requires a short, plain statement as a minimum that a pleader must provide. But it does not necessarily mean that anything more than a short, plain statement is improper under the rules simply because it is long (apart from what is contained in the complaint).

Cardozo as Yoda

With all due deference to Rick Garnett's apt observation about Justice Kennedy, Justice Cardozo was doing Yoda-speak long before Yoda was a gleam in George Lucas' eye.  The fact that I'm in Michigan without access to my full Cardozo collection limits my examples, but how about these from the classic (and wrong) majority opinion on fiduciary duties in Meinhard v. Salmon:

No answer is it to say that the chance would have been of little value even if seasonably offered.

Little profit will come from a dissection of the precedents. None precisely similar is cited in the briefs of counsel. What is similar in many, or so it seems to us, is the animating principle. . . . Certain at least it is that a “man obtaining his locus standi, and his opportunity for making such arrangements, by the position he occupies as a partner, is bound by his obligation to his copartners in such dealings not to separate his interest from theirs, but, if he acquires any benefit, to communicate it to them.”

Conduct subject to that reproach does not receive from equity a healing benediction.

Perhaps in common usage to be found a clue is: "They are not without their force if conduct is to be judged by the common standards of competitors."  Indeed, see one can from classic statement of the law this is that even when not in Yoda-speak, Judge Cardozo only one verb-positioning away was:

Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions.

Speaking of which, is it just me, or was Justice Cardozo reincarnated as Conan O'Brien?

A darn good footnote

Care of one of my students, I was treated to this delight in In re Richard Willis King, 2006 WL 581256 (Bkrtcy. W.D. Tex.) (Order Denying Motion for Incomprehensibility):

The court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible.FN1

FN1 Or, in the words of the competition judge to Adam Sandler's title character in the movie, “Billy Madison,” after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

"Beyond the Breaking Splendour of the Years"

I've blogged several times before here about the Tri-4-Gey team's efforts, inspired by my colleague Steve Gey and his battle with ALS, to raise funds to battle Lou Gehrig's disease. The excellent news is that they have now raised over $70,000, due in part to the generosity of readers of this blog. You can continue to donate here.

In the meantime, Steve's battle grows ever more difficult. A couple weeks ago, there was a lovely story in the St. Pete's Times by John Barry about how Steve and his students are dealing with the sad situation. Here's a link. Breaks your heart. And  inspires it too.

Title: a line from a poem by Dowell O'Reilly

The Oral Torah

In Passover, one of the greatest mitzvas is to tell the young children, through reading, singing and games, a story about rights and liberty. Hope all who are celebrating have a great seder - this card is may be a matter of personal taste, but everyone loves matzo balls!

A Friday Diversion--"Postcards from Yo Momma"

In the interest of a Friday distraction, and because I swear that some of them could have been e-mails from my own mother, I wanted to flag a new funny website that a friend of mine forwarded to me--"Postcards from Yo Momma."

Just don't read it in class...

From the weird world files...

Check out this story: One kid half-hugs two other kids. Result: 2 days of detention at Mascoutah Middle School. Here's why:

District Superintendent Sam McGowen said that he thinks the penalty is fair and that administrators in the school east of St. Louis were following policy in the student handbook.

It states: "Displays of affection should not occur on the school campus at any time. It is in poor taste, reflects poor judgment, and brings discredit to the school and to the persons involved."

Is it just me or does this seem like a profoundly odd policy? I can imagine some hugs being unwelcome but the idea that hugging one another categorically brings discredit to the school and the persons involved needs reassessment.  But as those of you who know me as an inveterate hugger, perhaps I'm just a bit sensitive here. (H/t: one of my unnamed colleagues who I tend to hug too much.)

Is the Hello Kitty Sanction Public Shaming or Semi-Private Guilting?

I'm grateful to the five professors (including Paul Secunda) who in the last few days emailed me with a link to the story in Thailand regarding the Hello Kitty armbands. You can read the story here in the NYT and here on Yahoo. I shouldn't be surprised it caught so much attention among my friends: the story is the second most emailed on the NYT from the last week, and it appears on the heels of some stories about Walmart's experience with shaming shoplifters, such as this recent one in BusinessWeek/MSNBC.

In short, the Thai police force recently announced that officers responsible for relatively minor infractions--littering, parking illegally, arriving late to meetings--will have to don a pink armband adorned by the famous Hello Kitty doll image, in addition to any other applicable sanctions.  This may look like, on the surface, to be a vogue adaptation of the famous scarlet letters of yore.  But, according to the Yahoo story, the officers won't be publicly shamed and held out to ridicule; instead affected officers will have to "stay in the division office and wear the armband all day."  (No word yet on whether the Sanrio Company behind Hello Kitty will be worried about its  potential intellectual property claims.)

Before sharing my reaction to this story, let me state my normal caveat, which is that these kinds of issues are far less worthy of media attention than the typical pathologies affecting criminal justice systems both domestically and abroad such as inadequate representation for indigents, poor prison conditions and over-incarceration.  That said, the Thai police force's innovative tool for regulating police misconduct is considerably more innocuous than the public shaming sanctions which spawn the debates I sometimes get involved with. 

Essentially, without the general public being involved and invited to leer and jeer at the officers, the Thai sanction raises none of the concerns associated with a menacing crowd hot for revenge that James Whitman and I raised in our separate critiques of shaming punishments. From what I can tell, an officer can sit in his office all day without too much interaction with others, but be required to see that his armband is intended to remind him of his misconduct.  This makes it seem far closer to what I call "guilt" punishments, not "shaming" punishments, because it is intended to induce moral awareness on the part of the person penalized, without subjecting the person to the excesses of shaming.

To be sure, it's likely that an officer's colleagues will rib one another for the armband and that definitely creates some degree of shaming among peers, which I could certainly do without.  But one could probably fix that simply by threatening to punish those who ridicule other officers with having to wear the armband also.  Another possible solution: one might be required to wear the armband only in a private office, where one does one's paperwork.

One troubling aspect of the Hello Kitty armband penalty not developed in the accounts I've seen so far is the gender assumptions accompanying it.  The acting chief of police who supports this penalty explains its rationale by saying that "'(Hello) Kitty is a cute icon for young girls. It's not something macho police officers want covering their biceps,' Pongpat said."  Does this rationale only apply if the officers are "macho"?  My guess is that few police officials in the US would articulate this rationale,  but then again, I remember Sheriff Joe Arpaio of Maricopa County (near Phoenix), who became famous over the last couple decades for, among other things, requiring those in his county jails to wear pink underwear. I'd be curious to hear reader reactions to this aspect of the Thai development or others.

Legal Academy Look-Alikes - Reprise

Billy Bob Thornton (right) took time off from his movie-making duties to appear here in Berlin at the Law & Society meeting under his academic nom de guerre, Randy Barnett (Georgetown, right).

"Randy" denied any connection, claiming that his blood was too precious to be given to anyone, including Angelina Jolie.  He also insisted that I was really Owen Fiss.

Did You Know the Burden of Proof is a Waivable Standard?

So I was reading an old Posner opinion (Burdett v. Miller, 957 F.2d 1375  (7th Cir. 1992))  and came across this passage:

Actually [the district court] did commit one clear error on the fiduciary count, and that was to apply the normal civil standard of preponderance of the evidence, rather than the higher standard of proof--proof by clear and convincing evidence--that Illinois requires to establish the existence of a fiduciary duty outside of the per se categories such as lawyer-client and guardian-ward.  But Miller waived the error in the district court by failing to ask the judge for the higher standard.  The normal standard of proof in a civil case is, of course, proof by a preponderance of the evidence, not proof by clear and convincing evidence. . . .  A federal district judge cannot be presumed to carry around in his head every esoteric rule of the law of the state in which he happens to sit.  If the parties do not mention the standard of proof in a civil case, the district judge is bound to apply the normal civil standard, just as he will apply the substantive law of the forum state if the case is a diversity case and neither party argues choice of law.  The preponderance standard, and the forum state's substantive law, are the default rules to be applied in such situations in the absence of objection.  And that is what happened here. The parties did not mention the burden of proof in any of their filings in the district court; the pretrial order didn't mention it; so naturally the judge applied the preponderance standard.

Not my field -- so perhaps this is old hat.  But I was pretty surprised to learn that a basic legal issue like the standard of proof could be waived.  Notable, too, is that Posner treats this as a federal rule of procedure: presumably even if the substantive law of Illinois held that the burden of proof is non-waivable, federal courts could ignore that requirement because a "federal district judge cannot be presumed to carry around in his head every esoteric rule of the law of the state in which he happens to sit."  These are the days I wish I got to teach and study Erie.

UPDATE:  For more on this interesting subject, you might look at Henry Noyes's recent article on parties' ability to specify details about the litigation process by contract.  Could parties contract for the harsher "clear and convincing" standard for breaches?  What if it is your cell phone provider furnishing such a contract to a consumer? 

Algorithmically Generated Ads on Your Paper's SSRN Abstract Page

Brian Leiter posts about a bizarre juxtaposition of Google advertising on the abstract page of a SSRN-posted paper.  I confess to being so oblivious I didn't realize there were ads on the abstract pages.

But I was curious, so I looked quickly at my own "Retire and Teach" abstract, and sure enough there are a couple ads generated by Google's association algorithm that would obviate the need to read the article.  The first claims "You may be younger than you think.  Take the Real Age test and find out."  The other one helps you figure out "how much you'll need to comfortably retire [sic]."

I wonder how many thousands of people are checking this out right now.  Unfortunately, it probably gives the ads far more attention than they would have otherwise had.

Nunchuk of the North

I am, by all accounts, a video game troglodyte.  I don't GET video games.  Well, at least most of them.  I liked Tetris and something called, I think, "Break Out" (you plinked away at bricks in a wall).

My son Matt just rented "The Bigs," the Major League Baseball Wii game.  Nobody else is around, so he was obliged to get me to play.  This is interesting.  You can get a real world injury snapping your wrist playing a virtual world game.  Didn't Joel Zumaya of the Tigers go on the disabled list last year for injuries incurred in playing "Guitar Hero?"  I am confused by all the buttons.  Where is Z?  Why is my outfielder just standing there with the ball?  Is there something intuitive to this that I am missing?  If I get hit by a pitch on the screen, can I punch out the pitcher in real life?  Do they have a Wii version of the hot dog eating championship?  Can I be Joey Chestnut?

Signed,

Baffled Boomer

Legal Academy Look-Alikes

Somebody at the New Law Prof Workshop turned to me and said "you really look like Owen Fiss at Yale."  Now there are some significant differences between Professor Fiss and me, not the least of which is that he is a distinguished academic with a world-class resume and I am not, but more importantly, the picture at left from the Yale Law School web site appears to have been professionally taken after he had bothered to shave, dress, and not pose so that it looked like he had a double chin, things I did not bother to do or avoid when my son James snapped the picture to the right this morning.

This, of course, caused me to think about the other look-alikes in legal academy that I've noticed recently (or not so recently).  First, it's amazing how much Christine Hurt (Illinois, left) gets done in terms of the triad of scholarship, teaching, and service, in addition to blogging up a storm at Conglomerate, and raising her kids, when she also appears in movies like Breach under her stage name Laura Linney (right).

Similarly, Professor Mike Green of Wake Forest (left), a member of the AALS Committee on Professional Development, in an admirable expenditure of service time, spent the entire weekend as a participant in the New Law Prof workshop, even though it meant not appearing as Capt. Donald Cragen in the next episode of Law & Order:  Special Victims Unit, where his AFTRA-registered moniker is Dann Florek.

Feel free to submit other look-alike nominations.  But be forewarned that I have already mentioned these similarities to the people involved and have not been punched out.  And I will delete any comments that are not nice.

If the Canadian tourist recently "disappeared" in Syria doesn't bother you, then dig into the delicious hummus in Damascus

I've just arrived back in the US after a 12 hour long flight next to a baby and within arm-reach of several noisy toddlers.  Lucky me. A couple quick things.

First, I literally cannot believe the NYT published Seth Sherwood's travel puff piece on Damascus this past Sunday.  Syria won't let Jews into the country. And for many years, Syria wouldn't let its Jews out.  Imagine a state said: sorry, you can't come in, you're black or Muslim or a woman.  Would we be interested in hearing about where to get a tasty lamb and baba ganoush combo? Sherwood, who makes no mention of its discriminatory practices, instead talks about how welcoming to Western tourists the country is. (Update: Unless of course, your passport has an Israeli stamp in it.)

I suppose we should credit Sherwood for ambiguating his presence in Syria by noting that some Americans may be wary of visiting a "country whose authoritarian government stands accused of some serious charges — financing Hezbollah, allowing foreign fighters into neighboring Iraq and assassinating the former Lebanese Prime Minister Rafik Hariri."  But still, he notes, "a week among the regular citizens of Syria and its cultural riches is eye-opening."  Does Sherwood think for a moment that Syria is not critical to the support of the genocidally-intentioned Hezbollah or the destruction of civic life in Lebanon? If so, he should ante up rather than describe a regime that merely "stands accused" of these charges.

This isn't the first time the NYT has seriously goofed.  As the writer at ShrinkWrapped notes:

In 1931, the New York Times correspondent Walter Duranty wrote a series of stories about Stalin's Soviet Union which extolled the virtues of the young communist state.  He neglected to mention the millions of Ukrainian citizens who died because of a state engineered famine or the litany of atrocities that Stalin has rightly become famous for in the eyes of history.  Nonetheless, in a fitting tribute to the nation which gave us the Potemkin village, Duranty was awarded the Pulitzer Prize in 1932.  Several years ago the Times missed an opportunity to redress their perfidy and decided to stand by Duranty's "reporting" and keep the Pulitzer Prize. In the spirit of Walter Duranty, the Times appears to be laying the groundwork for a celebration of the state of governance in some unexpected places.

Second, and related to this bout of insanity, I am reminded that I want to recommend a few outstanding pieces I had the chance to read on the long flight back this week.  Take a look at Paul Theroux's reportage from Turkmenistan from the May 28th New Yorker, and if you don't have the article at home, check out an interview he did with Radio Free Europe on his experience. Also, be sure not to miss Paul Berman's excellent book-length essay in the New Republic from a few weeks back on Tariq Ramadan and the enablers in the Anglo media (Ian Buruma's NYT Mag piece, etc.) who have treated him far too gently, Duranty Sherwood-esque, perhaps.

P.S.  Sherwood's account might possibly be driven not by insanity, but more benignly by what Ian Frazier humorously describes here.

And Public Interest Lawyers in NYC Make Ends Meet How?

By sticking to hamburgers, where the NYC dollar apparently remains relatively strong. Just don't order a glass of wine with the burger.

Sunday's Armchair Travel

With exams almost graded and summer time on the horizon, and with it, some travel opportunities both near and far, I thought I'd share a couple suggestions after the jump of some places to consider visiting based on some positive experiences this past year. Feel free to put in your own rec's in the comments, or if you've been to these places, your reactions too.

The Coast of California

Last August, my wife and I recovered from her Bar Exam by taking the trip up the PCH in California for a week.  If you're looking for a reasonably short vacation with lots of fun places to visit, I recommend starting off in San Diego, heading up to LA, Santa Barbara, Carmel, San Francisco and capping it off in Napa. We rented a convertible for the week, and Dollar let us pick it up in SD and drop it off in SF with no charge (or maybe just a nominal charge).  We alternated staying with friends and in various hotels and bed and breakfasts.  Here are some links to the highlights:

Lodging: cozy rooms adjacent to the ocean at the Colonial Beach Inn in Santa Barbara and the Crystal Terrace Inn in Carmel, and an exquisite stay at the Napa River Inn.  Indeed the Napa River Inn was probably the high point of the trip.  The Inn included with our stay an envelope stuffed with free or discounted wine tastings at the local vineyards and restaurants in Napa Valley.  We're not especially devoted foodies or oenophiles, but even a 2 day trip to Napa can jolt the senses delightfully, especially if you stop by COPIA, the American Center for Wine, Food, and the Arts.

Around the corner from the Napa River Inn, we found the Bounty Hunter. It was an extraordinary place to savor flights of wine and eat scrumptious food; the employees there helped neophytes like us learn about the varietals without a whiff of condescension.  We liked it so much we went there twice...if we had time, we also would have revisited Zuzu, a tapas wonderland on the main street of Napa. The nice thing about these places is you can do a course crawl, having starters and wine at the Bounty Hunter and then moseying down to Zuzu for some other tapas and unforgettable desserts.
Other food highlights from the trip include: picnic yummies from the Oakville Grocery in Napa;  Pizza at Tra Vigne in Napa; breakfast overlooking the water at the Brockton Villa in San Diego; delicious burekas at Bibi's Warmstone Bakery in Los Angeles; and the pastas at Pazzia in San Francisco (some of my favorite Italian food in an authentic trattoria in SOMA).

Mo'Bay, Jamaica

More recently, we took a short trip for a close friend's wedding to Montego Bay, Jamaica, where we stayed, as part of the wedding group, in the villas of the Half Moon Bay Resort.  If you're pondering a destination wedding, this resort does them frequently and well, and can even host more than one on the same evening, if you're into polyamoury or something.  Indeed, there was an interesting, though, as I discovered, not entirely accurate article about Jewish destination celebrations in the WSJ a couple months ago.  Stephen Henriques, who is mentioned in the article and can trace his family's Jewish history in Jamaica back several hundred years, officiated the wedding we attended.

As you can see from some of the pictures here, the setting was glorious, and the service was both cheerful and plentiful. Each villa (which you book with family or friends to fill the various rooms) comes with butler, cook, and maid.  Frankly, the level of service is almost uncomfortable, and certainly, mostly unnecessary...you're not sure whether to feel grateful for the chance to pump money into the developing economy or to feel guilty about one's own lot in life. Probably a bit of both. At least whilst on vacation, the best way to work though such troubles was to hit the tennis court and beaches, and tip generously.  I should mention that the food at the resort or its affiliated restaurants was not especially impressive.  When in doubt, you're best off sticking to the fish entrees and the mango-infused desserts, or buying groceries at the local commisary on the grounds and having the cook help you whip up something based on local recipes that is both simple and tasty.

Weird Class Settlement Structures?

By chance I just came across the supplement in my credit card bill from Bank of America that alerted me to this class action settlement regarding the foreign transaction fees charged by Mastercard and Visa.  If you've used a MC or Visa abroad in the last 10 years or so, chances are you're a member of the class, and it's worth your while to take the few minutes to fill out the form to get your restitution, such as it might be. The Court has set a deadline of January 9, 2008, to file claims for a refund. 

A couple reactions: I admit to being surprised and disappointed to see these charges on my statement, which for the most part I recall seeing in substantial amounts after last year's AALS conference in Vancouver, but for all I know,  I was paying them well before then too, either when I lived abroad and used my credit card, or when I visited my hometown a lot during law school.

Also, the structure of settlement seems odd. The credit card companies, I would surmise, surely know (at least for the last few years) what everyone's foreign expenditure exposure is but rather than have them just make the determination on all the accounts, the settlement calls for consumers to estimate their own amounts of expenditures abroad.

Here's another oddity: according to the site, "the $336 million gross settlement fund represents approximately 9% of the maximum total amount of foreign transaction fees" estimated to be damages to the class. Why was such a measly amount accepted at settlement then? Read on...    

Here's what the parties argue were the justifications for the amount of settlement:

The amounts of foreign transaction fees involved in the litigation could be significantly lower than $3.8 billion if the case were not settled and proceeded to trial. The proposed settlement damages class is larger than the damages class sought by plaintiffs in the underlying litigation. Furthermore, the amounts of foreign transaction fees involved in that litigation depend upon a variety of factors, including appeals currently pending before the United States Court of Appeals for the Second Circuit. For example, the trial court in this matter ruled that many cardholders would be required to arbitrate their claims instead of pursuing them in court. Both the plaintiffs and defendants appealed this ruling, and those appeals were pending at the time of the settlement. An appellate order upholding the trial court's ruling would remove from the litigation a substantial portion of the foreign transaction fees described above. And an appellate court order in defendants' favor could remove even more, or substantially all, of the foreign transaction fees from the litigation and require those cardholders to pursue their claims only in arbitration.

In addition, there is disagreement between the parties as to what portion, if any, of the amounts of foreign transaction fees involved would constitute damages in the litigation even if the case proceeded and plaintiffs won at trial. Defendants maintain that they did nothing wrong, unlawful or improper and therefore there is no liability. They also say that even if plaintiffs proved liability, damages would be sharply limited or eliminated altogether by a number of factors including, without limitation, the prices that would have prevailed in the marketplace in the absence of the challenged conduct, the benefits provided to cardholders, defendants' costs, and defendants' changed business practices. Plaintiffs contend that, even accounting for defendants' changed business practices and purported costs and benefits to cardholders, the potential damages are as high as the total amount of foreign transaction fees collected.

What do you think? After all, you're probably a member of the settlement class.  Anyone feeling that an opt-out is a better route...or that the plaintiffs' lawyers could have done a better job?  My guess is that we're pretty lucky the credit card companies paid anything but I'm doubtful we'll be adequately recompensed.  And I'm certain I wouldn't have bothered to opt out.*

*Hey civ pro prawfs: have there been any interesting empirical studies of opt-outs in class actions?

Well-Educated Chimps

Hi kids. My name is Alex Long. I'll be a guest here this month. I'm just happy to be here and hope I can help out the team. Hopefully, we'll win some ball games as we enter the playoff stretch here in the month of December.

In light of some of the recent discussion concerning non-traditional approaches to the law school curriculum, I thought now might be an appropriate time to bring up this article about a graduate from a non-traditional law school. It's a recent story from the National Law Journal about a graduate of an unaccredited law school in California who is suing for the right to sit for the Connecticut bar exam. I don't know anything about this individual, the law school from which he graduated, or Connecticut's rules regarding admission to the bar. I have my share of criticisms regarding the ABA's accreditation rules, but I don't know much of anything about all of the unaccredited law schools in California or enough about the practice of law in California to know whether such schools might actually have some legitimate role to play. (I'd be interested in hearing from those with greater knowledge, however.) Therefore, I don't really have any opinion about this particular suit or others like it.

I do, however, have a thought about a quote that appears at the end of the article. In advancing his basic argument as to why he should be allowed to sit for the Connecticut bar exam, this recent graduate is quoted in the article as saying, "A fairly well-educated chimp could practice law." I think it's fair to question whether some activities that only lawyers are currently permitted to engage in should really be considered "the practice of law" and whether graduation from an ABA-accredited law school should really be a prerequisite to entering the legal profession in a state. So, maybe this individual has the beginnings of a point.  However, this individual is also in the process of arguing before a member of a profession (the judge in this case) that he is entitled to be a member of that profession. Therefore, I wonder whether making the "well-educated chimp" comparison was really such a wise choice at this particular time.

Subservient Posner?

Thanks, Adam, for the news about the interview with virtual Posner.  Now if only we could somehow combine it with something like this.  Dance, virtual Posner, dance!

Coming to a Nuisance Near You: Dr. Phil

According to this story, Dr. Phil's "House" is a nuisance.  If only Dr. Phil himself could be declared a nuisance, I know that at the very least, my mental health would improve.

Your Investment is Toast

Just reading this news about a gadget that lets you burn different images on your piece of toast. Cool! Silly! Coolsilly!

Of course, my thoughts went back to the news story a couple of years ago, about the piece of toast with an image of the Virgin Mary that sold for close to $30,000 on ebay (a transaction that formed the centerpiece of a contracts exam I gave that year).

Does this new technological development render the Virgin Mary toast valueless? Or does the original Virgin Mary toast retain a special cache due to the religious iconography and the fact that the image appeared spontaneously? Of course, one could say that even the original sale on ebay really did serve to show the subjectivity of value (a point that very few students made on the exam, but which I had hoped more would address).

State v. Fido

In 1750, in Vanvres, France, an unmarried couple was caught in flagrante delicto. Pursuant to the ecclesiastical law of the time, they were tried and convicted of fornication and sentenced to be hanged. The man, Jacques Ferron, went to the gallows, but community sentiment swelled on behalf of his partner. The townspeople swore an affidavit that they knew her to be “virtuous and well-behaved”, and the judge, moved by popular sentiment, pardoned her. Oh, and there’s one detail I left out: the female defendant was a donkey.

This story comes from one of easily the strangest, but also one of the most interesting, law books I’ve read recently: E.P. Evans’ The Criminal Prosecution and Capital Punishment of Animals. The monograph, originally published in 1906, is about just what its title suggests—the medieval and early modern practice of subjecting animals to criminal process. Evans catalogues numerous cases where the state brought criminal actions against pigs, cows, donkeys, vermin, and swarms of insects. The accused were typically jailed (in the company of human inmates), tried (complete with publicly appointed defense counsel), and if convicted, subjected to sanctions that ranged from a knock on the head to capital punishments (hanging at the gallows, burning at the stake, and even burial alive).

Evans makes no secret of his disdain for these practices, and it’s easy to read the volume as an example of the transition (of both criminal law and society’s treatment of animals) from the benighted medieval world to the humane and enlightened modern one. But for a few reasons, I think the real story is a bit more complicated.

The stories Evans relates might be taken to suggest that to the medieval mind, animals and humans alike possessed equivalent moral agency—after all, why punish in the absence of culpability? But a closer reading of the evidence suggests that this isn’t quite right. Scholastic philosophers—including Aquinas—wrestled with the conceptual issues raised by subjecting animals to penalties designed to regulate human society. Their solution relied on notions the modern mind would find familiar: an acknowledgment of animals’ limited sentience (after all, while not human neither are animals rocks or bacteria); and the need to incapacitate animals that placed humans in danger. And the notion of punishing animals is not entirely foreign in contemporary society, as anyone who has shouted “bad dog” at a miscreant pet can attest.

Nevertheless, something seems absurd and tragically unnecessary about the practice of publicly punishing animals for criminal acts (to say nothing of the practice of subjecting humans to the same treatment). If animals pose a danger to society and must be put down, fair enough, but why make a public spectacle of it? Evans locates this practice within the strikingly inhumane treatment of animals that prevailed in pre-modern Europe. There is certainly some evidence for this. The work of Robert Darnton and Mikhail Bakhtin on early modern popular culture each observe the prevalence of torturing animals as a form of entertainment during festivals. Darnton in particular notes the irony of this practice becoming particularly widespread during Enlightenment-era France.

Evans confidently asserts that animal treatment has improved since the illiberal practices that prevailed as recently as the early nineteenth century. But it’s worth pointing out that being subjected to criminal process wasn’t all bad for animals. Society’s greater sense of their agency entitled animals to legal process that occasionally resulted in clemency, such as the pardoned donkey in Ferron’s case or the French case of a sow and cow whose convictions of capital offenses were overturned on appeal. The idea that animals possess moral agency thus cuts in two directions. By contrast, the contemporary notion that animals are not persons under the law divests them entirely of any formal legal protections, save for those a local jurisdiction chooses to extent through anti-cruelty statutes. Modern state determinations that dangerous animals need to be put down are summary and unreviewable.

But things have to be better for animals nowadays, with at least a modicum of public-law protections, right? Probably, but it’s a closer call than Evans and others might assume. Many of the practices that prevailed in centuries past (publicly torturing animals as family entertainment, for example) wouldn’t wash today, thanks to both animal cruelty ordinances and public mores. But while we’ve grown squeamish about watching animals be tortured, we don’t seem to be particularly worried about the existence of the practice when it’s easily ignored. The onset of factory farming has probably enabled extreme animal suffering on a less visible but far more widespread scale than existed during the periods that Evans and others describe.

Despite this, though, I’d still guess that animals today are better off than they were in earlier eras, just as the quality of life for humans has seen massive progress since then. But while I loved reading the Evans monograph, I think there’s some danger in his assumption that the attitudes and practices it catalogs—however strange they may seem—are nothing more than absurd relics of long-gone, backward societies. These practices had thoughtful theoretical foundations based in the dominant ideas of the time and brought their own balance of social costs and benefits. And I suspect that in a few hundred years, legal historians may look at our own conceptual and practical approach to animal welfare (near-total denial of animals’ legal status, widespread toleration of extremely cruel farming techniques) with the same mixture of horror and amusement with which contemporary readers regard the practices described in Evans’ book.

Where’s the Elephant in Your Law School?

This past weekend in Los Angeles, a new art show by British graffiti artist Banksy opened.  The show, called “Barely Legal,” (one of the hooks for this blog post) featured a painted elephant.  As the LA Times explains:

The warehouse was decorated as a living room, complete with furniture, chandelier and the standing Indian elephant.

Cards were handed out explaining: "There's an elephant in the room. There's a problem we never talk about. The fact is that life isn't getting any fairer…. 20 billion people live below the poverty line."

Apparently, however, this created a whole other set of problems for the artist.  Animal rights activists were unhappy with the use of a live elephant in his show. 

So, I’m going to use this as a segue to ask if there is an elephant (gorilla?) somewhere in our law schools?  A problem that is so common that no one talks about or discusses it?

Two Sniglets

Anyone remember Sniglets, you know, from back in the ‘80s?  They were words that should be in the dictionary, but aren’t.  So, for example, “execuglide” is using a wheeled office chair to move from one part of the room to the other.  Lately, I have two recent concepts that I feel need to be snigletted (is that a verb?), but haven’t come up with the right term yet.  Both of these instances, however, engender similar feelings.

 

The first concerns mapquest.  Now, ordinarily, I love mapquest, which is such a huge improvement over calling for directions.  I say that, but every now and again, mapquest will give you a set of directions that is completely, utterly, totally wrong.  And, because the service is normally is so good, you’re not expecting it, and often don’t have a map handy just as you take the wrong turn.  Let’s just say that you can get really, really lost this way (especially, say if you just moved to California and you’re in San Francisco and don’t know where you are going).

 

The second concept has to do with SSRN.  You’re working on an article, something that’s timely, fairly recent, and are plugging away at it.  You’ve done the standard preemption checks and literature search and have reached the conclusion that no one else has already taken the topic.  And then, viola, forty pages in, you check SSRN, and guess what?  Someone has developed “your” idea, and it certainly was a good one, cause hey, it’s going to appear in the NYU law review!

The Train Pulls Out of Kankakee...

Less than twenty-four hours but more than six hundred miles since I told Dan Markel that I would just as soon not do blog posts that are purely personal rumination, I feel obliged to say something about the longest solo drive I have ever made in my life.   I am now safely down for the night in a Holiday Inn Express somewhere in Mississippi, having left Indianapolis at 7:00 a.m. today.   In no particular order of importance:

1.  If tonight I'm staying in a Holiday Inn Express, then tomorrow when I arrive I should wait until Dean Ponoroff is out of the office and then slip into his chair.  When somebody walks in and asks, "are you the dean?" I can reply, "no but I stayed in a. . . ."

2.  My son and I went to see Talladega Nights:  The Legend of Ricky Bobby a couple days ago.  When I arrived here, I could not bring myself to eat dinner at the Applebee's.

3.  This is the first time I have ever stepped foot in Alabama or Mississippi.  The model of the Saturn 1-B at the Alabama welcome center near Huntsville is cool.  I wasn't so sure about the three sided pillar just across from it that says:  "Alabama:  we dare to defend our rights."  (For the record, I have Hawaii, Alaska, Washington, Oregon, Idaho, North Dakota and South Dakota to go.)

4.  Pilot truck stops have the best coffee.  The one outside of Louisville also had fresh bananas.

Enhancement Gone Awry

The NYT has yet another story on plastic surgery in its Thursday Styles section, focusing on the new "microprocedures" of liposuctioning knees and ankles.  Ana Bartow has already cuttingly commented on the Times' obsession with modish means of body modification.  I just want to juxtapose a few provocative quotes.

First, to their credit, the Times notes that

some sociologists and medical ethicists say that using liposuction — which can cause complications ranging from infection to death — for such tweaks raises profound questions about the increasing risks cosmetic doctors and patients are willing to take in the name of perfection. They say these microprocedures may signal a shift in beauty standards in which people come to regard the body the way they do their cars or kitchens: as an object able to withstand never-ending renewal and modification.

But it's back to so-called "journalistic objectivity" by the end of the piece, with a "bioethicist" commenting that "'Humans have always been willing to invest time, energy and risk in looking attractive, so I don't see smaller liposuction procedures as a sign of doom, gloom and the downfall of our culture.'"

Which brings me to the legal question.  Some of the procedures mentioned in the article were so "micro" that almost no one could notice what had occurred.  Query: what if a patient just asked a doctor to perform surgery, with absolutely no effect on their appearance?  Would it be legally permitted for the doctor simply to take the money, make the incision, take out, say, a gram of fat? Is this purely a matter of contract?  Or should legal standards prohibit such a transaction?

A final point: many libertarian bioethicists love to point out that the line between "therapy" (curing disease) and "enhancement" (making someone "better than well") is very difficult to draw.  I think that's only true to the extent we take it to be true.  As Victoria Pitts comments in the article, "The goal posts are changing so rapidly that what was once considered cosmetically unnecessary is now considered helpful . . . . [As more of the body] become zones of perfectibility, we will feel more and more pressure to get involved in projects that improve them."  Query: is that type of pressure at all socially useful?  Or, rather, does it betoken an infectious vanity that leaves everyone worse off?

Sweet Savannah

Just back from a brief trip to Savannah to celebrate the end of exams--boy, that place would be a good place to start or move a law school!  Thanks to a recommendation by Fernando Teson (my friend and colleague), my wife and I arrived in time for dinner at the delicious and old-school Savannah kitchen of Elizabeth on 37th St. We had trouble getting a place in town on short notice for Saturday night, but we stayed the next night at the beautiful and relatively new Mansion on Forsyth Park, which adequately gives a flavor of the "Midnight in the Garden of Good and Evil" aura for which Savannah has become famous in recent years.   For fun, we had the good fortune of arriving in time for a doggy carnival in Forsyth Park, but I also highly recommend walking along City Market and enjoying scrumptious tapas and live jazz at a Barnard St. basement restaurant called Jazz'd.  We saw Dave's True Story perform there two nights ago.  Also be sure to take one of the silly trolley tours just to get a sense of the city and when you're tired, grab a coffee and a paper at the Gallery Espresso.  Tybee Island's beaches are nearby and worth a visit if the weather is cooperating.  Sadly, we got rained out when we went yesterday so we came home so I could finish grading exams...the end (of grading) is near I hope.

Jon Stewart, subdivisions, and yard signs

Maybe it's just because it's the end of the semester, and I'm getting a bit punchy, but this episode (or, rather, this Jason Jones bit) of the  "Daily Show" -- called "Not in Your Front Yard" -- cracked me up . . . and made me think about urbanism, planned communities, Charles Tiebout, and McIntyre v. Ohio Election Comm'n.  NOTE:  There's some, um, colorful language used to describe the "shape" -- when viewed from space -- of a particular subdivision in Florida.

Fun with Case Names

During a recent visit to my parents’, I was not so subtly reminded that I had far too many boxes of books, papers, etc. from grad school and law school still being stored in their basement.  Going through one I found a paper with the following entertaining quote, from Easter Seal Soc. v. Playboy Enterprs., 815 F.2d 323, 325 n.1 (5^th Cir. 1987).  I thought I’d ask for people’s comments and suggestions about the most amusing case names you’ve come across . . .

Thus, this most delightful of case names: Easter Seal Society for Crippled Children [and Adults of Louisiana] v. Playboy Enterprises; seriously rivaled, in our judgment, only by United States v. 11 ¼ Dozen Packages of Article Labeled in Part Mrs. Moffatt’s Shoo Fly Powders for Drunkenness, 40 F. Supp. 208 (W.D.N.Y. 1941) (condemnation proceeding under Food, Drug and Cosmetic Act), and United States ex rel. Mayo v. Satan and his Staff (leave to proceed in forma pauperis denied in view of questions of personal jurisdiction over defendants).

The strange legacy of Village of Willowbrook v. Olech

I’ve long been a fan of constitutional oddities, and this one was too weird for me to pass up.  In a law-is-stranger-than-fiction moment, a recent Fourth Circuit case echoed the plot of 80s classic film Footloose.  In a small town in western North Carolina, the town fathers banned Rebecca Willis from state-funded community center dance events for the excessive sensuality with which she participated in the festivities.  Deprived of one venue for exhibitionism, Willis took her show to federal court, where she unleashed a barrage of constitutional claims (mainly first and fourteenth amendment) under the aegis of section 1983.

Undaunted by total defeat in district court, Willis appealed to the Fourth Circuit, where, somewhat surprisingly, she prevailed.  She won in the sense that she made the Fourth Circuit immortalize her dirty dancing in a Starr Report-esque retelling.  But she also won in a substantive (though partial) sense:  while the court dismissed almost all of her claims, it did find that there were questions of fact on Willis’ class-of-one equal protection claim, vacated the summary judgment on that issue, and remanded the matter to the district court.

Willis is more than just an amusing legal peculiarity:  it points to a pair of ongoing problems raised by Village of Willowbrook v. Olech,  the Supreme Court’s brief but influential 2001 decision that upheld an equal protection claim brought by a single individual alleging arbitrary treatment at the hands of a local government. 

The first is that Willis is not really such a peculiar case at all.  While many (most?) of the Court’s major constitutional decisions are met with scholarly announcements that a flood of frivolous litigation or an angry legislative backlash is in the offing, many (most?) of these claims turn out to be exaggerated.  (See, for example, David Barron’s recent debunking of the notion that Kelo would work great changes in state and local statutory law.) 

Olech, on the other hand, was a relatively minor constitutional decision, in the sense that it attracted little attention and only took up a handful of paragraphs in U.S. Reports.  Despite its low profile, though, the case actually has resulted in a flood of litigation, and it’s no wonder.  In order to state a class-of-one claim under Olech, one need only show that they were treated differently than similarly situated persons by a state actor in the absence of any rational basis for the differential treatment.  Any terminated government employee or property owner who doesn’t like the decision of a local zoning board is going to feel mistreated by the government, and Olech makes these commonplace grievances into plausible constitutional claims—hence Willis and the nearly two thousand other class-of-one claims that have deluged the (mostly lower) federal courts since the case was decided.

This might not be a problem if all these cases had a more sturdy constitutional backbone.  Olech didn’t generate much reaction, let alone criticism, from commentators, but has always seemed to me to rely on a problematic interpretation of the equal protection clause.  There may be a lot of dispute over which and what kind of groups the clause is supposed to protect, but it seems to me that the best reading of the clause is that it was designed to protect groups in the interest of preventing the development of a caste-based society, as opposed to merely shielding individuals from arbitrary exercises of state authority.

 

And it's not as though the Constitution rendered indivdiduals powerless against arbitrary exercises of state power prior to Olech.  There's always been a longstanding source of rights against such conduct:  the due process clause(s).  Admittedly, the standard for showing that government action violates substantive due process is steep, but as Willis illustrates, the litigation that's sprung up in reaction to Olech suggests practical reasons that a high standard may not be such a bad idea.

Demotivators

I suppose we are all familiar with those "motivational" posters -- "Inspiration", "Teamwork", "Dedication", etc. --  often advertised in "Skymall" and displayed in dentists' and deans' offices.  I confess:  I hate them.  So, I really appreciated this web site, featuring a whole line of "Demotivators" products, including, for example:  "Adversity:  That which does not kill me postpones the inevitable"; "Beauty:  If you're attractive enough on the outside, people will forgive you for being irritating to the core";  "Consulting:  If you're not part of the solution, there's good money to be made in prolonging the problem."

These "Demotivators" owe a lot, of course, to Jack Handey's "Deep Thoughts" (e.g., "when I die, I would like to go peacefully, in my sleep, like my Grandfather did.  Not screaming and yelling like the passenger in his car.").

Forget Dover, Look to Rome

According to a news release, an Italian court may undertake the task of determining whether Jesus really existed. Luigi Cascioli, an atheist, brought a complaint against a small-town parish priest, The Rev. Enrico Righi, under a pair of Italian laws that reportedly prohibit "abuse of personal belief" and "impersonation" after the priest wrote in a parish bulletin that Jesus did exist. According to the article:

"Cascioli says that for 2,000 years the Roman Catholic Church has been deceiving people by furthering the fable that Christ existed, and says the church has been gaining financially by impersonating as Christ someone by the name of John of Gamala, the son of Judas from Gamala."

Apparently Italian prosecutors sought to relieve themselves of their duty to investigate the complaint, saying no crime could be verified. But, "Cascioli challenged them, and Judge Gaetano Mautone set a hearing for next Friday in Viterbo, north of Rome, to discuss preliminary motions in Cascioli's bid to have the court appoint technical experts to review the historical data and determine if Jesus really did exist."

When Cascioli commented on his chances of prevailing, the article quotes him as joking, "We aren't optimistic--unless the Madonna makes a miracle, but I don't think that will happen."

Bombing Smurfs for Money

While spending time today at home due to the holiday, I received a series of phone calls from various fund raising agencies eager to convince me to give up a buck (or 50.)  Fair enough: it is easy to hang up.  But then I read a story sweeping the web on UNICEF's recent  use of a bit of intellectual property to raise cash.  Yup: they decided to fire-bomb the Smurfs.  Continue after the jump, but be warned: there are some images even hardened lawyers can't unsee.

I have to say, I found the idea behind this campaign pretty tasteless, and certainly a tone-deaf move by the UN Children's Fund.   And, not incidentally, the Smurfs have enough on their plate, what with Gargamel, allegations of communism and satanism, and the appalling gender inbalance.

And the kids didn't like it either.  From a news report: "The reactions ranged from approval to shock and, in the case of small children who saw the episode by accident, wailing terror."

Where is Jesse Helms when you need him?

The coolest nominee ever

Harriet Miers has to be the coolest nominee ever. After all, which other Supreme Court nominee has her own blog? (Hat tip: Conglomerate.)

Make Mine Extra Crispy, Please

From a report on damage caused by the fires that have been plaguing my lovely part of the country in recent days:

"San Timoteo Canyon fire: 1,160 acres burned between Redlands and Moreno Valley in Riverside County; 50 percent contained; destroyed three coops at a ranch believed to have as many as 90,000 chickens; no homes threatened; cause undetermined."

Oh, the humanity!  Wait, make that "Oh, the chickenity!"

Blogging about money

Daniel Solove spends his days figuring out how to better protect privacy on the Internet.

On the other side of the spectrum, some bloggers are doing all that they can to disseminate their private information on the net. From the New York Times story:

Mr. Wang, who lives in Columbia, Md., pared down his spending on groceries to just $53.98 for the entire month. He cut back on meals at restaurants and nights on the town with his girlfriend. He trimmed his utility bill by making sure the lights were off when he left his apartment. And despite an unexpected dental bill - $50 for the filling of a cavity in his right bottom molar - he managed to come in 28 percent under his monthly budget of $1,755. He put the extra $484.47 into his home-buying account.

How do we know all this? From his financial blog, an online document that manages to be confessional in tone without revealing all that much about his personal life. But it does tell more about his spending, savings and investment habits than many people know about their best friends'.

And how exactly do we contruct a system that protects online privacy as a default rule, but also has the flexibility to allow people to blog publicly about their bank accounts if they wish? That's a good question.

Fox News: The Gift that Keeps on Giving

SHEPARD SMITH: You’re live on FOX News Channel, what are you doing?

MAN: Walking my dogs.

SMITH: Why are you still here? I’m just curious.

MAN: None of your fucking business.

SMITH: Oh that was a good answer, wasn’t it? That was live on international television. Thanks so much for that. You know we apologize.

Click here to get the video.

Hat Tip: Wonkette (who else?)

Maybe I'm just a cynic ...

Is it just me, or does much of the media seem a little too excited about the prospect of a category 5 hurricane striking a major U.S. city? On MSNBC right now, in response to a slight slowing of Katrina's sustained wind speeds, the weather person almost seems to be saying, "Don't worry, this'll stay category 5 and highly destructive, I promise!" Over at Instapundit.com, Glenn Reynolds wonders whether the media's over-hyping of previous hurricanes led some people in New Orleans not to respond quickly to the government's earlier evacuation recommendations.

With Grit Like That...

I'm proud to point out that a college classmate, Howie Axelrod, makes his debut today in the NYT Magazine with this inspiring story (entitled A Baseline Recovery) about James Blake, the American tennis player who broke his neck in a game last May and has since recovered to play again.  I'd never heard about Blake before I saw Howie at our 10th reunion this past June, who told me about the story.  Having read it now, it'll be hard not to keep one's eyes on him.  An amazing story about perseverence. 

Wikipedia: Order Without Law?

Over the last year, Volokh conspirators Kerr and Volokh, among others, have expressed a fair degree of skepticism about the accuracy and appropriate citation of entries in the online encyclopedia, Wikipedia.  I tend to agree that the content of any given article in Wikipedia isn't sufficiently reliable to allow a reasonable judge, lawyer, academic or student to depend on.  I also agree with Prof. Kerr that there is no reason to believe that entries will naturally evolve toward accuracy -- the metaphor of evolution itself suggests why not. 

However, the question remains: how do the collaborative efforts of thousand of unpaid volunteers even come close to accuracy when any user can easily import her/his foolish views into any article?

The answer, I believe, lies in Wikipedia's dispute resolution policy. That policy, as written and applied, suggests to me that Wiki-community has created a set of norms to deal with conflict that look very much like the famous neighbor-ranchers of Bob Ellickson's Shasta County, as detailed in his book Order Without Law. 

When authors disagree as to the proper content of an article, they are directed to first remember Wikipedia's prime directive: adopt a neutral point of view.  This is apparently an important normative goal for members of the community.  They are told to always avoid the dispute by being respectful of others' edits, not "reverting" (or deleting the entire previous work of) others but instead improving it. 

If avoidance fails, Wikipedians are told to talk about the problem on each encyclopedia page's discussion tab.  There, they are to "avoid personal attacks," assume the other person is "acting in good faith", and to "stay cool."  Importantly:

[T]alking to other parties is not simply a formality to be satisfied before moving on to the next forum. Failure to pursue discussion in good faith shows that you are trying to escalate the dispute instead of resolving it. This will make people less sympathetic to your position and may prevent you from effectively using later stages in dispute resolution.

That is: Wikipedians don't "sue" Wikipedians.  They convince them.

If discussion fails, Wikipedia offers four second order resolution systems: discussion with third parties (there are pages devoted to such discussions), surveys, mediation, and (to aid in one of the previous methods) a third-party advocate. 

If none of these methods work, Wikipedia offers "formal" arbitration, which involves a committee  consisting of senior members of the community, empowered to make a final decision about a dispute.  Referrals to the committee are quite rare.

These norms may seem quite involved for what an unpaid project.  And, it is fair to wonder: does anyone pay attention?

If my experience is any guide, the answer is yes.  Check out this page, which recounts (in part) the Wikipedians' struggle to decide if my comments on this blog, and Eugene Volokh's responses, belong in an article about the retributive attempt to build a hotel on Justice Souter's New Hampshire property. 

You should go read the page to get its flavor, but in brief, one fellow ("OtisTdog") was unhappy with quotations to blogs (insufficiently neutral and authoritative, he claimed (Take that, Kerr!)).  The following sequence of events seemed to follow.

• He "reverted" revisions he disliked;
• Others criticized him for doing so, reminded him of the policy against reversions, and threatened a ban;
• He called for mediation;
• The community decided mediation was premature;
• He eventually admitted that his "bull-in-a-china-shop entrance [was] born of unfamiliarity with the way things are done here" and moved toward a compromise position; and he now
• "[G]enuinely appreciate[s] the chance to work this out here in the talk page instead of playing the revert game."

Is the original article accurate?  Not really, as I noted on the discussion page in question.  But who cares?  There is a whole ADR and conflict resolution system being set up behind the scenes, in the absence of (a) money; (b) the Bar; or (c) personal contact. And we don't have to go to Shasta County for months on end to see it.

For more on this fascinating topic, see this article by Joseph Reagle,

The future of computer programming

I don't know much about computer programming, so my assumptions may be all wrong.  Please correct me if they are.

Twenty years ago, people had to have a basic understanding of computer programming if they wanted to interact with computers.  Not an in-depth understanding, of course, but some intuition about how a computer accepts and follows orders; even some knowledge of programming languages.  People who used computers a lot and got them to do interesting things probably had to know more than dilettantes.  Such people were themselves, in effect, computer programmers.  Mere computer users--sophisticated ones, at least--had the basics necessary to become real programmers.

Today, however, my sense is that few of us who interact with computers understand how they work.  Kids growing up today don't have to learn anything about C-prompts or anything like that.  And we can do all kinds of interesting and important things with computers without knowing a darn thing about how they work.

Are these assumptions accurate?  If so, does it follow that the pool of potential programming innovators is likely to dwindle, since there are going to be fewer school-age kids who have a basic understanding?  (Of course, it may well be that innovation will just travel to different media.)

This is kind of like the argument my grandparents used to make when we used calculators in school: how will the kids learn principles of mathematics if they just have to push buttons on calculators?

Nursing Mothers and Jury Duty

Apparently, in some states nursing mothers are exempt from jury duty.  Governor Blagojevich of Illinois says

[W]hen a woman is nursing, her privacy and comfort must come first.

I can think of a much better rationale for the exemption: It simply isn't possible to accommodate a baby during a trial.  Babies cry.  They poop.  They need to be put to sleep on schedules.  They need to play.  If a woman is breastfeeding, her baby needs to be with her.  And we don't want the state telling mothers to stop breastfeeding during trial.

[Hat Tip: Blogging Baby, who adds some thoughts of her own.]