PrawfsBlawg

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.]

The Absurdity of Meaningless Rules

Blockbuster has announced a new policy called "The End of Late Fees."  The terms of the program are a bit convoluted, but most of them make some sense.  However, one term in particular is so bizarre that I have no choice but to comment:

Rentals are due back at the date and time stated on the transaction receipt. There is no additional rental charge if a member keeps a rental item up to 7 days beyond the pre-paid rental period.

What does it mean that rentals are due back on a particular day, but that there is no fee or penalty for keeping them seven more days?

I found myself at Blockbuster a couple of days ago (first time in a long time) and picked up a DVD.  The cashier told me it was due back on Thursday.  I asked him whether there would be a late fee if I returned it on Sunday instead.  He told me that there wouldn't be, in keeping with the new policy.  But he adamantly insisted that it would be due back on Thursday.  I didn't want to pick a fight with the guy or get into a philosophical discussion about the meaning of the rule; after all, he didn't make the rule.  I could only shake my head and walk away.

So I ask again:

What does it mean that rentals are due back on a particular day, but that there is no fee or penalty for keeping them seven more days?

The obvious loophole

Hillel and Christine are discussing the Manhattan ruling that porn does not violate anti-prostitution laws because you're paying an actor or actress to have sex with someone else, not with you. There are a number of potential issues, such as the director/producer/performer (as Hillel notes) and the strangeness of a contract that negates part of the penal code (Christine's point).

Let me point out another obvious issue -- this exception creates a huge loophole, where all that is required to subvert the law is a willing accomplice.

Let's say that I wish to obtain the services of a prostitute. (Obvious disclaimer: I don't actually want to do this; it's all hypothetical). I can go down and pay my $100, or whatever the going rate may be, to a young lady on Second Avenue. At that point, I run the risk of being arrested for solicitation.

However, I can give that $100 to Dan Markel and ask him to hire the young lady, as a "porn actress," to have sex with me. As long as we produce some record of that act, I can claim that we're porn producers, producing porn for Dan's benefit. (Dan need not ever actually view any tapes that I produce). And the end result is exactly the same -- I pay $100, the $100 goes to the young lady, and she has sex with me.

One possible counter-argument is that it costs money to record events on video. Except that it really doesn't anymore; it is dirt-cheap to produce tapes or computerized recordings of events. A cheap digital camera will do just fine; hell, I can record things on my cell phone! So the expense of video equipment is no barrier.

I don't know if prostitutes and their clients use this defense already. If they don't, I would expect them to start using it soon. The loophole is obvious.

More Homely Men in Ads

According to this story from "Sky.com", "[d]rinks companies [in the UK]  have been ordered to use uglier men in their advertising campaigns.  The Advertising Standards Authority believes "balding" and "paunchy" men would be less likely to encourage women to drink to achieve social success.  The new advertising code stresses that links must not be made between alcohol and seduction."

The story continues:

A campaign for popular sparkling drink Lambrini has become the first to fall foul of the new rules.

The Authority objected to a poster which showed three women "hooking" a slim, young man in a parody of a fairground game.

The industry regulator instructed the firm: "We would advise that the man in the picture should be unattractive - ie overweight, middle-aged, balding etc.

"In its current form we consider that the ad is in danger of implying that the drink may bring sexual/social success, because the man in question looks quite attractive and desirable to the girls.

"If the man was clearly unattractive, we think that this implication would be removed from the ad."

Lambrini owner John Halewood said the Authority should not be in the business of defining who was and was not unattractive enough to star in ads.

He said: "It makes some very understandable rulings to encourage sensible drinking but we're not sure they're qualified to decide for the nation who's sexy and who's not.

"Sexual attraction is happily one of the few things in life that can't be governed."

I can't help wondering if this is a joke.  (That said, a  regulation like this would be in the interest of men with hairlines like my own).  In any event, I am reminded of a really good essay, by Judge Alex Kozinski and now-Professor Stuart Banner, called "Who's Afraid of Commercial Speech?"  In the course of knocking down (pretty effectively, in my view) some of the standard arguments against according full free-speech protection to "commercial" speech, Kozinski and Banner have some fun with those old Michael J. Fox Diet Pepsi ads. 

Rick

Rove’s Nickname, Doonesbury, and a New Four-Letter Word

Since instances of stupidity are so rare these days, I thought I’d point out a recent example.  CNN reports:

About a dozen papers objected to Tuesday's and Wednesday's "Doonesbury" comic strips, and some either pulled or edited them.

The strips refer to Rove, the White House deputy chief of staff, as "Turd Blossom." . . .

The term is said to be one of several nicknames Bush uses for Rove, one of his closest allies and who is widely credited for Bush's election in 2000 and re-election in 2004. The mainstream U.S. media have rarely mentioned the nickname, but it has gained traction in the international press and on the Internet.

Since when is “turd” is a four-letter word?  I guess since always, but now in more ways than one. I can think of many terms for Karl Rove, and “Turd Blossom” is much nicer than any of them. 

Google Goes to the Moon

Google Maps, which allows you to see your home and neighborhood from satellite imagery, has now gone to the moon.  Google Moon allows you to explore the moon's surface.  So if you thought you could get some privacy by escaping to the moon, better start thinking of another plan.  Anyway, this website is quite fun, as is Google Maps, where you can check out what your rooftop looks like from above.  Humorously, Google Maps obscures the Capitol, so that it appears all blurry.  That must really provide tons of added security!   

UPDATE: I just learned that the moon really is made of cheese.  Try zooming up really close, and you'll see.  So it's really true after all!   

Charlie Sullivan and the Law Review Asterisk Footnote

By Daniel J. Solove*

* Associate Professor of Law, George Washington University Law School; J.D. Yale; Blogger at PrawfsBlawg and Balkinization.  I would like to thank Charlie Sullivan for writing the article that inspired this blog post.  Bruce Ackerman, Guido Calabresi, Cass Sunstein, Jack Balkin, and many others did not supply any comments or assistance to this post and have not even read it; nor have I even sent it to them for comments or talked to them about it.  But I wanted to mention some big names in this footnote, and I at least thought about them when I penned this post, so they deserve some credit.  I would also like to thank TypePad, which created the program with which I composed this post as well as Microsoft, which created the operating system that helps me occasionally by crashing and other software that allows me to realize my dreams.  The views in this post are solely my own Charlie Sullivan’s since this post basically just describes his article.  Any errors are, of course, to be attributed to Dan Markel, as he secretly edits all our posts and is responsible for all the errors or stupid things we say in them.

Joining a long line of footnote scholarship, including Anthony Grafton’s The Footnote: A Curious History and Jack Balkin’s famous law review article, The Footnote, comes this profound study by Professor Charlie Sullivan (Seton Hall Law School) in the Georgetown Law Journal, The Under-Theorized Asterisk Footnote.  A final version is available on SSRN.  From the abstract:

The asterisk footnote, although universally deployed in legal scholarship, has been equally universally ignored by the academy as a focus of scholarly interest. As I use the term, asterisk footnote refers to the note (usually, but not always, the first one) that, inter alia, identifies the author and (usually, but not always) is indicated by an asterisk. This footnote is used by every scholar but analyzed by none. This scholarly inattention is shocking given the remarkable growth and development of the asterisk footnote over the last 40 years. This Article is the first effort to address this gaping lacuna in scholarship. It is my hope (perhaps not my expectation) that it will launch a wave of asteriskian studies that will throw new light on the legal academy.

In addition to tracing the history of the asterisk footnote from its origins in the primeval scholarly ooze to its present exalted status, the Article explores its significance for the legal academy on topics ranging from wholesale acknowledgements to dedications to pets. It also considers what light the asterisk footnote can throw on questions as diverse as the proper etiquette for tributes and the democratization of scholarship.

Sullivan compares asterisk footnote length in Harvard Law Review from the late 1960s to more recent volumes and notes “an explosive growth in the size of the footnote and, more interestingly, a transformation of the functions the footnote serves.”

From the article:

With respect to lead articles, however, Volume 114 reveals a number of dramatic changes in the asterisk footnote. Take Akhil Reed Amar, for example; the asterisk footnote to The Supreme Court, 1999 Term—Foreword: The Document and the Doctrine, is worth reprinting in full:

*Southmayd Professor of Law, Yale Law School. The ideas presented below owe a great debt to what might be called the late-twentieth-century “Yale School” of constitutional interpretation, especially the writings of Charles Black, John Hart Ely, Bruce Ackerman, Jed Rubenfeld, Jack Balkin, and Reva Siegel. Thanks also to Vik Amar, Jon Blue, Steve Calabresi, Erez Kalir, Neal Katyal, Sandy Levinson, Mike Paulsen, Richard Primus, Bob Pushaw, Kim Roosevelt, and Jeff Rosen for their comments on earlier drafts, and to Brooks Allen, Josh Chafetz, Won Joon Choe, Harleen Kahlon, and Vasan Kesavan for their research assistance. 

For those who have stayed awake thus far, there are three remarkable features to this footnote.  First, the elimination of academic credentials. As was true for President Pusey in Volume 81, current position says it all for Professor Amar, and this seems to be generally true, since most authors in Volume 114 omitted their academic degrees. The one exception may, perhaps, be forgiven: a judicial clerk in the company of giants of the academy notes his Ph.D and J.D. 

Second, the intentional informality of the acknowledgments. It would be hard to imagine any of the authors in Volume 81 thanking, say, “Archie” Cox or “Andy” Casner.  But it’s apparent that none of Amar’s reviewers (with the exception of “Richard” Primus) wears a suit and tie to class. These are the kind of people you could have a beer with after work. OK, share a bottle of Pinot Grigio. 

The most dramatic change in the asterisk footnote is the sheer number of scholars who vetted Professor Amar’s work before it was published. Even putting aside possible unidentified members of the “Yale School,” Amar’s article reflects eleven names—more input from colleagues in the academy than in the entirety of Volume 81. Nor is Professor Amar unique in this. While there are authors who acknowledge fewer colleagues, some Volume 114 authors acknowledge far more. Consider Daniel J. Seidmann and Alex Stein, whose The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege acknowledges the collective contributions of participants at three conferences and eleven faculty workshops spanning at least three countries, as well as forty-one individuals thanked by name. By this standard, Professor Amar is a “close to the vest” kind of guy. 

But Seidmann & Stein do not hold honors for acknowledgments, even in Volume 114.  That distinction belongs to Louis Kaplow & Steven Shavell, whose asterisk footnote in Fairness Versus Welfare (after identifying the current positions of the authors) begins, “This article will subsequently appear in book form.” As this consumer advisory warns, the article continues for 422 pages. (C.C. Langdell’s desire not to impose too much on the reader at one time has obviously been consigned to the dustbin of history. On the positive side, Fairness versus Welfare does not end with “To be continued.”) . . . .

[The footnote includes] fifty-one named individuals, twenty-three conferences or workshops (in at least three countries), and thirty-four research assistants.  This is the record for Volume 114; the number of individuals acknowledged in other articles is more in the Amar range, although the distribution is wide. Only one author failed to thank anyone.

The themes of this post are too complex to pull together in a tidy conclusion, so I will end by suggesting that you download Charlie’s piece for an entertaining and interesting read. 

Internet Vigilantism

A Korean woman is now infamous after refusing to clean up her dog's mess on the train.  (Via Boing Boing).  A quote from the Docuverse story about her:

It began in a subway train with a girl whose dog made a mess on the train floor. When nearby elders told her to clean up the mess, she basically told them to fuck off. A nearby enraged netizen then took pictures of her and posted it, without any masking, on a popular website which started a nationwide witchhunt.  Within hours, she was labeled gae-ttong-nyue (dog-shit-girl) and her pictures and parodies were everywhere. Within days, her identity and her past were revealed.

This is disturbing.  I'm as in favor of clean subway cars as the next guy.  But internet vigilantism raises a host of serious ethical questions.  This woman has, at worst, violated a minor municipal ordinance.  The resulting huge publicity is probably far in excess of her offense. 

However, internet vigilantism is on the rise.  Some of it is probably relatively harmless, such as 419-baiting.  Other instances, such as the public exposure of "Laura K. Krishna" (later changed to a pseudonym) as a plagiarism-seeking student, are more troubling.  Internet vigilantism may seem cute, and it certainly satisfies the tastes of web surfers who are always eager to watch a villian get his comeuppance.  But it manifests all of the problems of the classic lynch mob, including lack of appeal, lack of impartial hearing, and a definite possibility of excessive punishment.  (Plus, in a world of photoshopped pictures, the possibility of an unjust conviction seems intolerably high).

I suspect that there are a lot more issues relating to the question of internet vigilantism.  If only I knew of any experts in, say, privacy, or shaming punishments, who could comment further about this topic . . .

UPDATE:  I need to do better pre-emption checks.  Dan Solove already posted some great comments on this topic, over at Balkinazation.  Dan's comments on the topic are spot-on, as expected.  And Marcy Peek, here at Prawfsblawg, has a nice follow-up as well.

For whom the booth tolls

Yesterday we had a fun family visit with some of my wife's relatives in New Jersey.  Around 9:30, we piled the kids into the car and began a trip home.  It was hellacious.

The exit from the I-78 -- the "pay your toll here" spot -- was almost totally frozen up.  It took nearly an hour, and some serious stuntwoman-like driving by my wife, to navigate the morass.  But after an hour in massively snarled, almost completely stopped traffic, we finally made it to the toll booth, where we dutifully paid our toll of . . . one dollar and fifteen cents. 

(We would repeat the process at the Holland Tunnel itself, waiting another hour before we paid our six dollars).

That level of inefficiency is staggering.  We incurred gas costs of sitting for hours, plus the human time of waiting, plus the frustration of trying to navigate the mess.  (And we could have been there a lot longer -- some of the lanes were moving at fewer than ten cars through the booth in half an hour!)  I'm positive that for every dollar the state was actually collecting at those booths, it actually imposed several dollars of cost on the drivers, cost which was comletely wasted.

What's the solution?  I'm not sure.  The economic side of my brain says that the state (or whoever runs the toll booth) should open up a $20 booth.  Drivers could have the option of paying $1.15 and waiting an hour, or paying $20 for a presumably much shorter wait.  I know which group I would have been in -- I would have been happy to have paid $20 rather than $1.15, in order to skip the hour of waiting.

Would such a split toll be feasible?  If not, isn't there some way to collect the state's tolls without paying dollars-on-the-nickel in transaction and waste costs?  (And yes, I know, a partially split system already exists with the Easy-Pass.  Why not extend the principle a bit?)

Josef K. – Justice Denied. Again.

Judge Alex Kozinski and his law clerk, Alexander Volokh recently published an opinion by a panel on U.S. Court of Appeals for the 9th Circuit in a law review article.  The article is called The Appeal, 103 Mich. L. Rev. 1391 (2005).  The judges on the panel were Judges Alex K., Bucephalus, and Godot.  No reason is given for the inexplicable delay, as the case was argued and submitted in 1926 but not decided until 2005.  And no reason is given why the opinion was published in the Michigan Law Review rather than in the Federal Reporter.  Shame on the panel!

The opinion begins:

The late Josef K., a thirty‑something male, claims that "[s]omeone must have slandered [him], for one morning, without having done anything truly wrong, he was arrested." T.R. 3.

The procedural history of this case is complicated and patchy, but what is clear is that, after being rude to his arresting officers, appellant came late to his initial interrogation and disrupted the proceedings. He refused to attend further interrogations, submitted no evidence or brief in his defense and repeatedly accused judicial authorities of corruption and incompetence.

He was apparently convicted, though the conviction does not appear in the record. On the eve of his thirty‑first birthday, K. was taken to a quarry by two guards and executed. "With failing sight K. saw how the men drew near his face, leaning cheek‑to‑cheek to observe the verdict. 'Like a dog!' he said; it seemed as though the shame was to outlive him." T.R. 231. As it has.

K. appeals, alleging unlawful arrest, inadequate notice, due process violations, systemic corruption, ineffective assistance of counsel and actual innocence. We affirm. . . .

The panel denied K.’s claims regarding his arrest:

Even though he was under arrest, K. was still allowed to "carry[] on [his] profession" and was not "hindered in the course of [his] ordinary life." T.R. 17. [FN5] Also, K. admitted that the arrest "ma[de him] laugh," T.R. 47, and that, to the extent the incident tended to "spread the news of [his] arrest [and] damage [his] public reputation, and in particular to undermine [his] position at the bank," "none of this met with the slightest success." T.R. 48. Without cognizable harm, K. lacks standing to contest his arrest.  De minimis non curat lex. . . .

While we're on the subject of trifles, we address K.'s claim that he was arrested without a warrant. At the time of the arrest, K. showed the guard his identification papers and demanded, in return, to see the guard's papers and the arrest warrant. T.R. 8. Not only was he not shown these, he was also told that the guards "weren't sent to tell" him why he was arrested. T.R. 5.

We see no problem. Before ordering an arrest, the authorities "inform themselves in great detail about the person they're arresting and the grounds for the arrest." T.R. 8. They don't "seek out guilt among the general population, but . . . [are] attracted by guilt . . . .  That's the Law." T.R. 8‑9; see also Decl. of Penal Colony Officer ("Guilt is always beyond a doubt."); Gerstein v. Pugh, 420 U.S. 103, 113 (1975) (arrest warrant not necessary for arrest supported by probable cause).

The panel affirmed the conviction, denying poor K. justice once again (the first time being his sudden execution):

K.'s only clear claim is that he is innocent. See, e.g., T.R. 47, 148, 213. But how can K. credibly claim innocence when he admits to not knowing the law? T.R. 9. He might as well dispute what the meaning of "is" is. The fuss he makes about how innocent he feels "disturbs the otherwise not unfavorable impression [he] make[s]." T.R. 14. Especially ludicrous is his suggestion that no one can "in general be guilty," as "[w]e're all human after all, each and every one of us." T.R. 213. That's how guilty people always talk.

In any event‑‑and this is the nub of the matter‑‑we fail to see what's so special about being innocent. See Commonwealth v. Amirault, 677 N.E.2d 652, 665 (Mass. 1997) ("[O]nce the [criminal] process has run its course . . . the community's interest in finality comes to the fore."). We will assume, for the sake of argument, that K. did not commit the crime for which he was convicted and executed. Can we be sure that K. did not commit some other, worse crime, that was overlooked? To ask the question is to answer it. The law works in mysterious ways and that which should be done is presumed to have been done. It follows that that which was done needed doing. K. was convicted and executed after a legal process that, as we have seen, is unimpeachable. He must have deserved what he got.

The opinion concludes:

K.'s overarching complaint, that "the Law should be accessible to anyone at any time" and that he has been denied entry to it, T.R. 216, "rings hollow." Alex K., Scholarship of the Absurd: Bob Bork Meets the Bald Soprano, 90 Mich. L. Rev. 1578, 1583 (1992). The very existence of these proceedings has provided an entrance for K. to defend himself. K. has consistently refused to cooperate with court officials' repeated attempts "to straighten out his complex case, regardless of the time and cost." T.R. 251. No one else could gain admittance here, because this entrance was meant solely for him. If he nevertheless remained outside, he has only himself to blame.

This opinion is in flagrant disregard of the law.  I am especially outraged that Judge Godot never attended oral argument, and the opinion has been written without any indication he has read the papers or discussed the case with the other panel members.  Such a disregard for justice is Kafkaesque, to say the least.   

Perhaps the most ironic opinion pertaining to Josef K. is a real one by the U.S. Supreme Court.  In Joe Kafka v. United States, 121 S. Ct. 1365 (2001), the U.S. Supreme Court issued its typical one-sentence order, denying certiorari without explanation: “The petition for writ of certiorari is denied.”  Recall the parable in The Trial: “Before the Law stands a doorkeeper. . . . The doorkeeper sees that the man is nearing his end, and in order to reach his failing hearing, he roars to him: ‘No one else could gain admittance here, because this entrance was meant solely for you.  I’m going to go and shut it now.’”  A one sentence denial of cert., without explanation . . . how appropriate for Josef “Joe” K. 

Loans and Lattes

The Washington Post is concerned about massive law student debts which are apparently being driven by . . . $3 lattes?  (Link via Christine).  According to the Post, a latte habit can add up to $4000 over the course of law school.  Yowza!  But wait . . . don't law students regularly graduate with $100,000 or more in student debt?

I haven't run the numbers myself, but I kind of suspect that high tuition (regularly between $25,000 and $30,000 at private schools, and not all that cheap at public schools) and skyrocketing rents (a result of the recent real estate bubble bull market) probably contribute more than Starbucks towards law student debt.  (See also Althouse).

Hey - here's an article idea for the Post:  Maybe instead of focusing on the money gained from making homemade coffee versus storebought coffee, the article should focus on school-taught legal education versus homemade legal education!  Students could save a bundle.  Law school meets homeschooling.  Perhaps this is the next great trend in legal education.

(Full disclosure:  I'm a Mormon, so I don't drink coffee.  So I saved even more than you homemade coffe drinkers!  No coffee at all for me -- a $4000 gain (if I did the math right).  Ha, ha, neener neener.  But wait --Mormons also have to tithe.  And on a lawyer's income, the cost of tithing definitely outweighs my measly $4000 gain from not drinking coffee.  Rats!  I'm still in the red.)

Focusing on the Wrong Focus Groups

Chrysler has announced a refresh of the PT Cruiser in order to boost interest among those who do not yet own one.  But the look isn't changing much at all.

How was this decision reached?

The company did a lot of workshops and "clinics" with current PT Cruiser owners, said Dennis Krozek, director of front-wheel-drive vehicles for Chrysler.

"They told us, 'Don't mess with the design," he said.

If they want to sell the product to people who have shown no interest in the old version, wouldn't it make sense to conduct focus groups on people who don't already own one?

Attack of the Mac Clones?

There are a number of reasons to buy a Mac  Among them:

• The operating system is pretty solid (in my experience);
• They come loaded with extensive--and usable--software suites;
• Seamless integration of hardware, operating system, and other software;
• They look cool and have the cache of being exclusive and different;
• They don't tend to get viruses (largely because they represent such a small percentage of the computing market that hackers don't bother trying to mess with them).

There are also reasons not to get a Mac.  Among them:

• Pound for pound, they are more expensive than PCs;
• There is a great deal of software that is not available for them;
• Compatibilty problems with PCs.

Dell now wants to license the Mac OS.  If this ever came to pass, it would change the equation dramatically.  The potential good news:

• Computers using the Mac operating system would come down in price (as Apple, Dell, and possibly others engaged in a price war);
• Mac OS market share would grow, and thus more software would become available;
• Compatibility with PCs would have to improve.

But the news wouldn't all be good:

• As the Mac OS gains market share, we might see Mac viruses;
• A price war could force Apple to cut costs by cutting the form factor out of its design process;
• As market share rises, Mac would become less "cool";
• The rise of third-party OS-compatible software could destabilize the platform, causing a Mac equivalent of the PC Blue Screen of Death.

In short, for better and worse, Mac would cease to be Mac.

As one who owns a beloved iMac, I think it would mostly be for worse.

[Hat tip: Engadget]

Unforeseen Benefits of Practicing Securities Law

Yes, there are downsides:  Long hours.  1000-page filings.  Often incomprehensible statutes like SOX and the PSLRA. 

On the other hand, I've never had a former client put out a hit on me.  Norm, at Crime & Federalism, isn't so lucky.  He notes:

A former client of mine wants me dead. At least that is what the federal prosecutor told me yesterday in a late afternoon phone call. My client is reaching out for hit men in his new home, a federal prison.

Yikes! 

I hadn't appreciated until now that securities lawyers are essentially never shot at.  True, we have to deal with the PSLRA.  But even at its most daunting, the PSLRA isn't as bad as dodging (real) bullets. 

When gay-rights ideals clash with environmental good sense

One of the stranger news stories that I've seen in a while involves gay penguins at a zoo in Germany.  ABC news reports that:

A German zoo which suspects its entire male penguin population might be gay has now said the birds can remain as same-sex couples.  Humboldt penguins are an endangered species. So when the six humboldts in Bremerhaven failed to breed, the zoo became concerned. . . . The zoo flew in four females from Sweden. . . .

Gay groups around the world deluged the zoo with angry emails and phone calls. The zoo now says its penguins have shown no interest in the new arrivals.  They say the same sex couples are too well-established, and the males can remain gay if they choose.

I have to say that I'm surprised by the story, and a little disappointed.  I understand the desire to let the penguins remain gay, and I understand the need to protect gay rights.  However, species preservation is also a priority.  If these penguins are an endangered species, then zoo keepers were doing just the right thing in trying to find ways to keep the species alive. 

(Also, I also don't see how protesters could accurately assume that these particular penguins were actually gay and not bisexual.  Thus, flying in female penguins also seems like a good idea.  It's probably the only way to tell whether these penguins are bisexual rather than gay.  And rather than being an affront to their sexual identities, it is their only opportunity to let people know whether we've had them pegged wrongly all this time.)

As the story turns out, the penguins were indeed gay, not bisexual.  And this puts us back at square one, from an environmental standpoint.  And here we run into a fundamental tension:  Entire populations of non-breeding same-sex couples are not a recipe for species survival.  In creatures that reproduce sexually, some amount of heterosexual sexual interaction is necessary for the species to survive. 

Perhaps artificial means are appropriate for these penguins -- sperm harvesting, or cloning, or in vitro fertilization.  Perhaps not, I don't know enough about the science to have an opinion. 

But I do think that species preservation comes first.  In the absence of available artificial methods, I think that it could be appropriate, in instances where a species has a small and endangered worldwide population, for keepers to try to breed animals despite even clearly expressed homosexual preferences.  When judging between an animal's right to sexual orientation and the possibility of extinction, I'm going to value species preservation over sexual autonomy.

Safety announcements on Southwest get funny

Do go to Dissemination.org and read about Ruchira Paul's recent experience on a Southwest Airlines flight.  She's framing it as a question of legal liability to appeal to some of her lawyer readers (which you are free to engage)--but it is just a pretty funny in-flight announcement.

Academics and the newspapers they read

As you know, I attended the Law and Society Conference this past weekend at the JW Marriot in Las Vegas. 

On the weekend, the hotel does not distribute newspapers.  On saturday night at about 9:15 I went to the gift shop to get a New York Times. I didn't see one on the shelf, so I asked the cashier whether they sold out, or whether they just don't carry it. 

She said (and I'm paraphrasing, but this is pretty close):

We carry it, but it sold out in the early afternoon.  Strange, though, because we don't usually sell out the New York Times.  Whatever conference group is here must read the NYT more than most people.

Well, yes.

Skin Deep?

I've just returned from a combined business/pleasure trip to Paris (the pleasure) and Dublin (the business).   Travel can be rejuvenating - Paris on the eve of the E.U. consutiton vote was electric with a collective sense that a vote of "non" or "oui" was more than an expression of political cynicism or faith, but an affirmation of democracy as an essential personal and common value.   Travel can also be exhausting - I strongly advise that one never ignore the notation of a particular date as a "bank holiday" when attempting to embark on a series of carefully timed overseas  flights.  And pack a picnic and bedroll if your tranfer in Heathrow involves more than one gate area.  My husband called Heathrow the  habitrail - which seemed entirely apt.  Finally, travel can be perplexing, as you obtain a new vantage point on questions that seem easy or even uninteresting elsewhere.  I went to Dublin, at least in part, to learn a little more about how the European medical community has been addressing the legal and medical questions that arise in child abuse cases.   

Over the past year, England has been engaged in a massive program of criminal case reviews following a number of well-publicized infanticide exonerations.  I was hoping that, at the annual conference of the European Society for Pediatric Radiology, I would learn a bit more about the medical experts' response to these exonerations and glean the general interest in providing expert testimony to the prosecutor (which - unlike defense expert testimony - is not lucrative).  I was also visitng Dublin for the first time and was anxious to experience a city that had witnessed so many dramatic changes in both its recent and distant past.   Dublin did not disappoint, but my five Days in Ireland served as a powerful reminder that public interests and appetites may sometimes correlate, as in the Paris vote, but media attention can also be misleading. 

In Dublin, I was struck by the ravenous public appetite for every detail of the Michael Jackson child abuse trial.  For days on end, the daily papers devoted their entire world news sections to the Santa Maria trial and international CNN provided regular updates, even when there was no news to report.  After my experience in Paris, I  could not help but wonder, if this interest Michael Jackson reflected growing interest in child abuse, or was it merely skin deep.  After all, if Michael Jackson had not chosen to reinvent himself as a racelss, sexless, almost flesh-less being, would we all be so interested?  I wasn't really surprised that interest in Michael Jackson does not correlate with genuine interest in child abuse, even among the relevant medical experts, who (with just a few notable exceptions) generally shun the expert witness role.   To my knowledge, the O.J. Simpson prosecution did not reinvigorate interest in preventing domestic violence (and you don't need to write to remind me that he was acquitted).  I admit that these conclusions are anecdotal, unscientific, and potentially impacted by my much more important discovery that not all stout tastes of coffee and cigarette ash. 

Double Down.

As others have noted, George R.R. Martin, reigning guru of the "high fantasy" universe, has finally announced that he has completed his latest book (years late).  Sort of. He is splitting a massively large volume into two large subparts, with each part completely exploring the actions of half of the main characters over a fixed period of time.  Ah, to be an obscenely rich fiction author with near-monopoly power (mostly arising from path dependence in selecting authors.)

Got me to thinking.  Is division the way to solve the problem posed by HLR's new anti-sprawl regulations?  Imagine Kaplow and Shavell's "Fairness versus Welfare" divided into its principled and practical parts.  Hmm.  As Jules Coleman has argued, maybe that wouldn't have worked out so well.

Guilty as Charged. See ya in Church.

CNN reports that Judge Caperton in Kentucky is sentencing some drug and alcohol offenders to . . . church time?  The ACLU is opposed, of course.

I don't know enough about the particular case to argue one way or the other.  In general, I think that sentences to church time raise some serious red flags, and present quite a bit of potential for abuse.

But I'm wondering about scenarios in which there is a good reason to offer alternative church sentences.  Say that you're a judge in a small town in Kentucky or Alabama or West Virginia, and you've got a batch of DUI's and drug-possession cases.  Your town doesn't have a strong network of social service agencies, but it does have a strong local church which runs a highly regarded, historically effective 12-step program for addicts and alcoholics.

Is it wrong to offer some of these convicts the option of going to the local church 12-step program instead of jail time? 

On the broader level, what should the judge do in cases where it looks like there is a genuine rehabilitation benefit to be gained from channeling some convicted people to a religious organization that has an effective social network that will help them overcome their problems?  Is the judge's only option "sorry, I've got to send you all to the slammer"?  On the one hand, there are fairness issues for prisoners who do not wish to attend church services.  On the other hand, there could be a real loss in rehabilitation for prisoners who would be willing to work with the social programs operated by a church.

(And just to reiterate -- I don't know enough about the Judge Caperton sentences to know whether they meet this pattern, and I'm naturally suspicious of coerced church attendance.  It's usually bad.  But it strikes me that there are cases where it might be a net benefit to society -- how do we handle these?). 

Reflections on Israel, Part I

Various readers have asked for some more details about my recent trip and I thought I’d share some highlights of the recent trip to Israel and some of my impressions of that continually astounding country. 

We started off our Israel trip in Jerusalem , enjoying the extraordinary hospitality of my cousins Tzippi and Elad, who live in the Kiryat Yovel section of Jerusalem.  Notwithstanding the fact that I had lived for a year in Jerusalem ten years ago on a Dorot-Harvard fellowship and had been there many times before a few times since, Elad took Wendi (whose first trip to Israel this was) and me to a few neighborhoods that undergone extraordinary renaissances during the last ten years. 

Ein Kerem in particular is a place that few foreign travelers get to because it’s a bit hard to find, and not easily accessible through public transit or by foot from the heart of Jerusalem.  But it’s a magnficent place, with winding roads, cafes whose outdoor seating is layered with lush overcover from the trees, and hidden oases of quiet and space in an otherwise bustling and teeming city. 

We stayed in Jerusalem for a few days, where we saw, among other things, the fantastically powerful and newly renovated Yad Vashem, the Holocaust Museum

that Marty Peretz wrote elegantly about a few months back here.  We stopped by to say an impromptu hello to Shimshon Zelniker at the Van Leer Institute on our walking tour of Talbiye, and ended the day with an extraordinary meal and conversation at the bookstore café, Tmol Shilshom, with my friend David Ehrlich, the writer who, eleven years ago, decided Jersualem needed a magical reprieve where ideas and yummy food could commingle among foreigners and Yerushalmis alike. During our stay in Jerusalem, we also took the very instructive and fun tunnels tour at the Western Wall in the Old City (take note that reservations are necessary). 

This trip marked the first time I rented a car in Israel.  Sadly, Israel is known for having lost more people on its roads in car accidents than during wars or acts of terrorism. But I can see that things have improved markedly over the last ten years.  Although I speak Hebrew reasonably well, I found the roads incredibly well-marked in English for tourists and the maps are very helpful in avoiding getting lost (too often).  I was also impressed by the quality of the roads and highways: Israel has spent lots of money on developing a good infrastructure for travel, and especially if you avoid travelling at peak hours, you can traverse a great deal of the country in surprisingly short amounts of time, which allows you to enjoy a good amount of Israel’s variegated geography without having to lose a ton of time in travel.

Ok, enough for now. In Chicago for Wendi’s brother’s wedding. Must be sociable now…

Frankfurter Spectacular, and other Gastronomic Monstrosities

So, 30-year-old Weight Watchers recipes are, it turns out, extremely bizarre and easy to mock.  And also apparently (at least on the surface) unaffected by analysis of health or fat content or other things that might make sense on a Weight Watcher's recipe.

And did I mention that they're bizarre? Fish tacos?  "All you need is toast and quotation marks!"  Frankfurter spectacular?  Damn.  (I wonder if future generations will have this much fun at the expense of the Atkins diet.  I'm thinking that they will). 

As silly as these recipes are, I wonder if there's not a subversive kind of weight-loss scheme going on here.  Make the food so repulsive that no one will want to eat it . . . and voila, you're losing weight!

Properly American Political Tests

AA links to a British political test.  Let me point out for those patriotic souls who would like to see their politics arranged on a nice, neat little grid -- but want it done in American rather than British terms -- that there are similar tests available at http://www.politicalcompass.org/ and at http://www.self-gov.org/quiz.html .

I promise, these other tests are just as useless as the test AA linked.  And they're all pretty good in their role as kinda-fun time wasters.  The British test has better graphics, though.

performing arts

A lawyer becomes a one man act off broadway:

"I am a civil rights and antitrust lawyer with 40+ years of experience and am producing and performing in my production "Town Attorney General Meeting" to explain: * how one person can obtain free healthcare for an entire town or village; * how voters can be encouraged through a "reverse tax" of $5-10,000/year to support enforcement of the nation's antitrust laws; * how a "Town Attorney General" can fight the "Evil Economic Trio of Outsourcing, Globalization and Declining Standard of Living" on behalf of the entire town or village; * what has caused globalization and how to attack the cause at the town level; * how the antitrust law-enforcement role of the federal and state governments can be re-created by a willing coalition of towns and villages, for the increased prosperity of their residents * how the monopsony power of certain major retailers is based on violations of the federal antitrust laws and can be stopped by appropriate actions by a collection of the nation's Town Attorneys General to be. The idea of having a Town Attorney General become the primary law enforcement official for the United States is a "no-brainer" upon several moments of reflection, and when the first town or village in the US obtains free healthcare as a result of the enforcement activities of its Town Attorney General you could expect a grassroots movement by many of the other 18,500 towns/villages to do the same for their respective residents. You have an opportunity to participate at the start of this movement to offset the destructive effects of globalization upon the residents of the US by (i) attending one of the performances and participating in the meeting together with the other members of the audience (even if you should be critical of any or all parts of the plan); and (ii) letting your colleagues, friends and students learn about my "Town Attorney General Meeting". Tickets ($15) are available at www.townattorneygeneral.com...  Opening night is Thursday, June 2nd, at 7:30 pm, in midtown Manhattan; and a 2nd performance is set for Friday, June 3rd, 7:30 p.m."

hmmm...

Read other people's secrets

This site is mesmerizing.

[Bekeshe Flash: Andrew]

So, the Pope, a Rabbi, and a Supreme Court Justice walk into a bar . . .

Yep, they're discussing funny judicial opinions over at Volokh. 

Funny, of course, being a relative thing.  None of the opinions discussed are rolling-in-the-aisles funny; Jay Leno and Conan O'Brien have about as much to fear from Antonin Scalia as they do from Laura Bush.  But legal writing being what it usually is, we'll take what we can get. 

One side note -- per Volokh's rules, that thread is limited to Supreme Court cases.  Thus, no one could cite Bradshaw v. Unity Marine Corp, which includes such lines as:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions.

With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins.

Well, we're not so persnickety over here.  So please feel free to use the comments to point out any other gems of humor in district, circuit, or state court opinions that we really ought to see.

Ann Coulter and Affirmative Action

Two weeks ago, Time Magazine did a fawning profile of Ann Coulter.  I was out of town without internet access for almost two weeks (horror!), and so I am only now able to get my thoughts in.

It strikes me that Coulter is, in a very weird--and very Republican--way, a product of affirmative action.  Yes, she sometimes says acerbically witty things.  But she's also made outrageous comments (including ones that border on racism) that no high-profile male political commentator would dare make.  (Read the article for examples, some of which are reproduced below the fold.)

But because she is a conservative woman, she is lauded as a truth-speaker--and she can keep her job.

Everything she says should be judged along the following metric: If Tucker Carlson said it, (1) would anyone be listening?, and (2) would he be in the unemployment line?

Oh, and by the way, her general defense of "it is all a joke, and liberals are too stupid to get it" is the defense of every self-styled provocateur.

Coulter excerpts:

We should invade their countries, kill their leaders, and convert them to Christianity."

----------------------

"She opposes abortion rights and has written that court-ordered school-desegregation plans have led to 'illiterate students knifing one another between acts of sodomy in the stairwell.'"

----------------------

"Liberals are about to become the last people to figure out that Arabs lie."

----------------------

"likes to shock reporters by wondering aloud whether America might be better off if women lost the right to vote"

-----------------------

After he finished, I asked Coulter whether she had managed to convert her Muslim boyfriend. "No," she answered, her heart apparently not melted: "I was just happy he wasn't killing anyone."

------------------------

COULTER: God gave us the earth.

FENN: Oh, O.K.

COULTER: We have dominion over the plants, the animals, the seas.

FENN: Oh, this is a great idea.

COULTER: God said, 'Earth is yours. Take it. Rape it. It's yours.'

FENN: Oh, terrific. We're Americans, so we should consume as much of the earth's resources--

COULTER: Yes. Yes!

FENN: --as fast as we possibly can.

COULTER: As opposed to living like the Indians.

--------------------------

"Like many of you, I carefully reviewed the lawsuits [alleging bias] against the airlines in order to determine which airlines had engaged in the most egregious discrimination, so I could fly only those airlines ... Imagine the great slogans the airlines could use:

"'Now Frisking All Arabs--Twice!' ...

"'You Are Now Free to Move About the Cabin--Not So Fast, Mohammed!'"

But that's not (or not only) a joke. Coulter actually favors discrimination based on skin color in airports. She argues that airports should establish a separate line for men and boys whose complexion suggests they could be from the Middle East; they would be screened more thoroughly than other passengers.

"Basically," she says breezily, "aged 15 to 45--12 to 45, say. Swarthy men ... We'd be searching, you know, Italians, Spanish, Jews, males--but you're excluding the women. You're excluding the old people. You're excluding American blacks."

An Open Letter to the Editors of Legal Affairs Magazine

I don't know if the Legal Affairs editors and managers read our blawg, but if any of our regular readers know the powers that be over there, please direct their attention to this post.

I love Legal Affairs Magazine.  I have been a subscriber for around two years running.  Interestingly, my wife--who is not a legal professional and who generally has no use for, or interest in, legal commentary or scholarship (unless it is written by me, in which case she is enthralled.  Honest.)--also loves the mag.  Indeed, it is one of the few periodicals that we fight over.  It is provocative, entertaining, and easy to read.

We are therefore sad to report that we are now allowing our subscription to lapse.  $49.99 is just too much to pay for six volumes a year.  (I seem to recall that the price was lower until recently; did it change as a result of the mag becoming independent from Yale Law School?)

I assume that you charge such an exorbitant fee as a result of market conditions, rather than a simple desire to gouge me.  Still, I can't afford to pay over $8 an issue for a periodical.  When the price comes down to something affordable and even remotely competitive (say, $29.99 per year), I will immediately resubscribe.  Until then, I will continue to read your online content, which I have extolled before.

Regretfully,

A Former Subscriber

Would you track your kids?

Florida has now passed a law mandating lifelong GPS tracking of sex offenders.  I was just in Florida on vacation, and I have another proposal: GPS tracking of children in Disney World.  We can debate the merits and demerits of The World some other time, but I wonder how many parents would choose to track the wee ones in this place.  Trust me, it is easy for a kid to get lost.

But why limit it to Disney World?  Wouldn't parents be interested in tracking children's whereabouts at all times? 

Now, I'm not talking about invading the privacy of teenagers or any such thing.  I'm talking about the really little kids--the ones who wouldn't have a clue what to do if they got lost or, more horrifyingly, abducted.

One company already makes a GPS watch for children; but why not something implantable, just under skin or in teeth, for instance?  As a parent of young children, my absolute worst nightmare is that a child is lost or abducted.  Assuming it could be done safely and relatively painlessly (let's say no pain worse than an ear pierce), what is the harm in being able to track a little kid in the event of an emergency?

Of Pets and Starving Children

Daphne Merkin's useful article on our culture's treatment of pets was very worthwhile.  I really worried before my wife and I took in Zeke Leib-Schonfeld; I was obsessed with the ethical problem of expending large sums of money on a pet that could otherwise go to starving children. 

I admit, though, that I love my dog and I'm glad I didn't avoid pet ownership on a purported moral highground.  Still, I try to control unnecessary spending on him.  I am not among the 31.5 million dog owners that give their dogs gifts for the holidays.  Nor am I among the 9.8 million dog owner that celebrate their dogs' birthdays.  Other fun and disturbing pet facts can be found here.

Step away from the Burrito!

One of the stranger stories you're likely to hear this week.

RCN: Boooooo!

This will mostly be of interest to the DC readership, but it may not be of interest at all.  It's a rant.  I hate my internet/cable/telephone provider.  It's Starpower, now known as RCN.  They charge tons of money and have shitty service.  I remember from when I was living in another city that I couldn't effectively have them stop billing me even though service had long since terminated, and even though I had asked them to terminate service long ago.  I'm convinced that they were violating all sorts of fair trade practices that would govern.

There has been very slight improvement over the last five years.  When I moved to DC three years ago, they installed a cable box, along with modem and telephone service in my apartment.  Six months ago I decided to try a six month promotion with HBO, which I barely watched. Now I want to revert back to my previous package and they claim that the box they gave me three years ago and didn't charge for all these years is now subject to a rental fee if I don't keep the premium package that was part of the trial.  What's more, they make you wait forever if you want to downgrade service but if you want to add more services, they have salespeople ready to help you right away. 

Even worse: part of the premium package was that you get five fancy phone features.  They charged me all along for these features but never actually gave them to me. 

So like I said: this is a rant. I hate RCN and look forward to the day the FCC and FTC fine them gazillions of dollars and that customers are given enough options to tell them to go suck it.

Ok.  That feels better.

Extolling the Virtues of the Web

Has anyone mentioned that this internet thingie is totally cool?

Last week I ordered a couple of books from amazon.  According to UPS tracking, the book arrived at my house on Saturday.  Well, here's the deal: I live at my house, and the book didn't show up.

So I decide to call amazon.  Alas, the customer service number is not easy to find.  But then I remember that slate.com previously found and posted the number as a public service.  So I search slate, and sure enough, here it is:

Chatterbox is pleased to announce that the customer service line for Amazon.com is:

1-800-201-7575.

Chatterbox tracked it down by scrolling to the bottom of Amazon's home page, clicking on "Investor Relations," clicking (in the left-hand column) on "SEC filings," and then clicking on Amazon's last quarterly filing, dated Oct. 24. Here Chatterbox found Amazon's corporate address and phone number in Seattle. Chatterbox dialed the number, asked for the customer service number, and was given it. (Only after going through this exercise did it occur to Chatterbox to search Google for "Amazon.com customer service phone number." That turned up a few non-Amazon sites that give away its customer service number. See, for example, this and this.)

That number, again, is

1-800-201-7575.

Chatterbox urges Amazon shoppers to bookmark this page and refer to it next time there's a problem that can't be solved without a human voice. That number, one last time, is

1-800-201-7575.

Tell 'em Chatterbox sent ya!

Sure enough, they are sending the books again with upgraded shipping, gratis.  Thank you Tim Noah!

Google + CraigsList = Croogle?

Vic Fleischer (UCLA Law) has resuscitated A Taxing Blog, a blog on tax and business law and policy, which I admit is not really my cup of tea.  Still, Vic's a zippy writer with a sharp eye.  And one of his amazing posts includes this link to a website that unites Google's incredible maps function with Craigslist real estate listings.  Where is this Croogle for Tallahassee??

AmosAnon1 on Tax Prep

Americans spend 6.6 billion hours on tax preparation per year

Well, I assume we aren't talking individually here, but rather in the aggregate.  Still, that's . . . a lot.  And a massive inefficiency.  And wealthier people spend money on accountants and mine the code for deductions.

I wonder what you all think about this proposal for a national sales tax, but before we all get into a tizzy about regressive taxation, check this out:

And his bill untaxes the poor by including an advanced monthly rebate, for every household, equal to the sales tax on consumption of essential goods and
services, as calculated by the government, up to the annually adjusted
poverty level.

I know there are flaws, but let's hear them from you.

Posted by Ethan (for AmosAnon1)