Wednesday, April 13, 2005

Back in Business on a Limited Scale 

Yo, for anyone wandering by, Lance McCord has graciously asked my to group blog over at Perpwalk for the time being. Come check it out.

Wednesday, January 19, 2005


Dear reader,

I think I'm going to have to end my blogging for a while. Ever since getting back and starting this semester, I feel a little overwhelmed by work, and other things loom larger in my free time than blogging. My blog reading is down, which may be a good thing. I would still like to blog in the future, but I think I will suspend my activity until such time as I can devote more time to this hobby, perhaps also using Movable Type.

I'll see you around, just not as much,


Friday, January 07, 2005

Back in Town 

So I fly to Japan, and it snows in Tokyo. I am assured this is rare. Two days later it snows a lot harder. I go out to visit a friend in Kyoto, and it rains. I fly back, huge rain storm in L.A. At least I missed the tsunamis.

Summary of why Japan kicks ass: squid tenticles on a stick.

Monday, December 27, 2004

Happy New Year 

I'll be flying to Japan tomorrow, and blogging will likely be non-existent until I return. Both of my readers will have to amuse themselves elsewhere. For now, an early "happy new year."

Sunday, December 26, 2004

Yes, Virginia, You Do Have to Follow the Law 

A travesty is unfolding in Virginia as a former same-sex couple struggles over custody and visitation rights of their child. (Brief news blurb here). Lisa Miller-Jenkins gave birth to a daughter, conceived by artificial insemination, in Virginia. Her former partner, Janet Miller-Jenkins, had been given partial visitation rights by a Vermont court. The two had been civilly united in Vermont, but later split, and Lisa is now renouncing her lesbian past and is living in Virginia. A Virginia court has granted Lisa full custody because "Virginia does not recognize Vermont’s civil union law or rulings issued from it. An appeal has been filed.

No matter what one believes about same-sex marriage, civil unions, or traditional marriage, this one is a no-brainer: the Virginia court should enforce the Vermont judgment. I say this assuming a few facts: first, that the Vermont court's ruling was first-in-time; and second, that the civil union was dissolved in Vermont prior to the proceedings in Virginia. The decision is simply a matter of comity, and is required by the Full Faith and Credit Clause of the federal Constitution.

Same-sex marriage is a sticky interstate issue, but with these facts it should be a relatively easy decision. As I see it, a state must respect another state's judgment if the order came from a state that had jurisdiction over the matter. Here, Vermont clearly had such jurisdiction, being the domicile of both partners for a time, and being the state of civil union (family law experts may be able to correct me on this, but it seems right). There are no facts to suggest that Virginia is the sole proper forum for this dispute. Thus, Virginia is bound by the order just as if it were being asked to enforce a money judgment entered in another state, even if the law in Virginia doesn't recognize the same cause of action. For example, if I sue Nick for negligent infliction of emotional distress over events that occurred in California and win, Nick moves to Virginia, and I sue in Virginia to force payment, even if I could not have obtained a judgment for NIED under Virginia law, the court is still bound to force payment from Nick to me; i.e., give the California judgment Full Faith and Credit.

Same-sex divorce is no different. If Massachusetts were to divide up the community property of A and B, both males and married under Mass. law, and enter a judgment of divorce, agreement should be enforceable in any state of the union. A different situation, to my mind at least, would be if two married men were to travel to Virginia, accumulate property, and then ask the Virginia court to dissolve their marriage. The court could properly deny marriage status to the couple. The analogous situation, back to the above situation, is if I have a valid cause of action against Nick for his actions in California, but I sue him in Virginia. There is no judgment to enforce in Virginia, and so applying Virginia law to the events in California, I lose.

The only out is see for Virginia is if there is a "strong public policy" exception to enforcing the out of state judgment. For example, say state A allows slavery (putting aside federal constitutional issues) and grants a judgment to X from Y for harm to one of X's slaves. State B should not be made to enforce this judgment in its courts. The question then is whether same-sex marriage (or civil union, or domestic partnership for that matter) would be against the "stong public policy" of Virginia to where it could validly ignore the Vermont judgment. I'd say the answer is no.

The same term "strong public policy" is used in FF&C Clause jurisprudence for denying effect to a marriage of another state, i.e., whether Virginia would be required by the federal Constitution to recognize a valid Massachusetts same-sex marriage within its border. There is a dearth of federal FF&C Clause cases on marriage, and those I encountered very old, but from what I gather, procedural marriage differences were not against strong public policy (e.g., a valid common law marriage in state A must be recognized in state B even though state B doesn't have common law marriage), but the courts alluded that other invalid marriages (I'm assuming polygamous or incestuous) would not be forced on other states. As far as marriage recognition, I've argued elsewhere that same-sex marriage would fit under the "strong public policy" exception for FF&C recognition, not because it is especially harmful, but because it differs fundamentally from the contesting state's definition of marriage on a substantive level, not just procedurally. This is open to debate, but not one for this post.

However, an argument about whether a court should be exempt from recognizing another state's court judgment on the grounds that it violates a strong public policy (assuming such an exception exists) could not be based on the same procedure/substance distinction (as this would erode the FF&C Clause entirely), nor on whether the contesting state would need to recognize the marriage itself (which also seems incongruous with states respecting judgments for law it doesn't follow), but would instead need to rest on concrete moral harms of a very large magnitude, or be confined to wrongs prohibited by the federal Constitution. Same-sex marriage doesn't nearly rise to the level of slavery, acts of racial violence, or other gross injustices that should be shunned by a civilized society. At most, it is a fairly serious disagreement about a fairly serious tradition.

Of course, the reason the judge in Virginia refused to enforce the Vermont judgment is because of a strong belief about the fundamental wrong of same-sex unions. Hopefully the appellate court will follow the law instead of trying to engineer society from the bench.

(Author's note: I may very well have butchered any number of well settled doctrines of interstate law or family law, and please leave comments if I have done so, but what I tried to do was take a common-sense approach to the issue, informed by my knowledge in other areas of the law.)

Thursday, December 23, 2004

Holiday Baby 

So, I hear today is Festivus. It's also my birthday. I'm not quite sure what to make of that. I hope it at least makes me immune from the airing of grievances and the feats of strength.

Monday, December 20, 2004

All Over the Place 

Professor Bainbridge has this mini-roundup of Professor Sander's affirmative action findings in the news, including Sander's L.A. Times op-ed, and some thoughts on Professor Liu's op-ed, which I comment on directly below.

The Challenge has Been Joined 

How Appealing points to this op-ed by Law Professor Goodwin Liu challenging Professor Richard Sander's latest article on whether affirmative action actually decreases that number of black lawyers that would graduate and pass the bar. A summary of Professor Sander's article was posted on the Volokh Conspiracy some time ago, and can be accessed here, here, here, and here.

I do not know enough about statistics to make any judgments about Sander's data, but his critics would be more persuasive than to come at him with assertions that are circular, self-contradictory, and that are clearly ideological.

Professor Liu begins with this assertion:
Sander's conclusion flies in the face of the most basic tenet of economics: that people act rationally to maximize their self-interest. Affirmative action has been with us for 30 years. . . . If the costs of affirmative action outweigh the benefits, then surely the "victims" would know. Over time, they would see that the best black students at second-tier law schools (and some top students do go to second-tier schools for geographic, financial and other reasons) far outperform their peers at more elite schools and have a much easier time passing the bar.
The answer seems easy: human beings maximize self-interest, but can only do so when they are fully informed. Part of what makes Sander's study interesting is that no one seems to have done anything like this before. Think about it: when we hear about affirmative action, it is always in terms of admissions, not metriculation. If this is so, as I believe it is, then where would the information about affirmative action's effect on black law school success rates come from? How would thousands of annecdotal accounts be aggregated to benefit any particular potential applicant's decision? Are affirmative action programs even subject to market pressures (it seems entirely political to me)? There are many ways to think about why an applicant's decision may not be fully informed, and thus prevent a decision that maximizes self-interest.

But on a simpler level, this argument is entirely circular--affirmative action is still around, so it must be successful at producing black lawyers. Hell, he might as well have said "Hey dummies, its called affirmative action, so it must be good!"

I don't see this as a very strong point, so luckily Liu abandons it in his next point:
Sander takes an unrealistic view of how many blacks would still attend law school if affirmative action were to disappear. . . . As his study concedes, ending affirmative action would cause black enrollment at the most elite law schools to drop from 7% or 8% to 1% or 2%. A top student faced with being one of only a handful of blacks in law school might reasonably decide that other career paths are less isolating and more promising. Similarly, other options might appear more attractive to an applicant who, without affirmative action, would have to attend a 40th-ranked school instead of a 15th-ranked school.
This argument seems to rest on the assumption that, contrary to his earlier assertion, black applicants will behave irrationally if affirmative action were ended. Instead of trying to get accepted, do well, graduate, and pass the bar (i.e., become lawyers), black applicants would instead be so deterred by the lack of black law students at top schools (Liu mentions nothing about lower tier schools) and the discouragement of suddenly loosing a benefit. Of course these arguments have merit in their proper context; schools shouldn't turn a blind eye to social forces beyond the academic sphere. But this point contradicts the earlier assertion about maximizing self-interest: it assumes that blacks will abandon a career path designed to help them succeed (i.e., situate them with whites with similar test scores and academic backgrounds) without ever seeing its benefits, and condems the proposal. It also assumes that attending a school where students have similar academic backgrounds, rather than artificially being placed in a higher ranked school, is a deterrant, contrary to what a rational person would believe.

In short, Liu predicts a huge PR backlash against law schools that discontinue affirmative action, producing far fewer applicants than would otherwise occur, and so condemns the whole idea. Politics like this are certainly something to think about, but so far his first two assumptions are based on competing premeses, and he waffles between which theory supports the end he wants to reach.

It is especially disingenuous to assert that this irrational drop in applicants (and acceptances) is too onerous to overcome any benfit when a large portion of that drop would be due to blind acceptance of affirmative action as the sole program that could possibly benefit black law student success. The failure of ending affirmative action will thus become a self-fulfilling prophesy. This argument has nothing to do with whether ending affirmative action could produce more black lawyers or not, but rather that affirmative action proponents will prevent it from doing so through propaganda.

Professor Liu's final point is more reasonable:
Copious research, which Sander does not confront, shows that the achievement gap at selective universities is because of differences not only in entering credentials but also in the university experience itself. . . . fear of doing badly in school and thereby confirming racial stereotypes generates anxiety among black students that undermines academic performance. In addition, for many minority students, the lack of minority faculty heightens feelings of isolation and makes it difficult to find close mentors. And despite much progress, minority students still face discrimination on campus, both subtle and overt.
It is important to remember that there may be other factors to consider when diagnosing why black students systematically perform worse than whites in the same school. The goal is to have everyone succeed. That said, Liu sets up the typical straw man against Sander's findings--that affirmative action is a zero-sum game (which I have indulged up until now)--and proceeds to use evidence of other factors as an argument that Sander's findings are incomplete.

The entire point of Professor Sander's article is that we should look at affirmative action and the academic costs of putting students in settings they are not prepared for. Affirmative action itself may be one of the problems, exacerbated by other factors described by Professor Liu. Professor Sander is challenging affirmative action orthodoxy, and encourages discussion. So far, the only things I've seen in response are snide remarks about how he ignores contrary data, has an agenday, and makes unreasonable assumptions. Critics, like Professor Liu, would do well test their own assertions for these systematic errors.

In addition, Sander does not advocate ending affirmative action completely. He, in fact, proposes what he calls a "4 percent solution": retain affirmative action in top schools to attain a 4 percent black student body (which would enable qualified black students to obtain prestige positions, clerkships, etc) that would offset some of the problems of isolation and achieve other diversity benefits, but would push more black students into lower-tier schools to increase their performance and help bar passage rates. Of course, if his critics acknowledged this, they wouldn't get to make their high sounding attacks against his findings.

Professor Sander's own words on the matter are most revealing, and leave me no doubt that he is genuinely working toward bettering education for everyone, which I don't think can be said for all of his critics: "My hope is that, by developing some rough consensus on how to model the systemic effects of affirmative action, we can have a much richer dialog and can identify and test possible compromises, like the 4% solution, that break the ideological logjam."

Friday, December 17, 2004


Finished Professor Bainbridge's final today, finishing off the fall semester of my 3L year. I eagerly await my Cs.


Sound Politics has been keeping a close eye on the numerous recounts in the Washington state governor's race between Democrat Christine Gregoire and Republican Dino Rossi. The whole process is laughable, but one incident in particular, if true, is absolutely incredible:
The oval for Gregoire was filled in and the write-in line had the name "Christine Rossi" written in. The Canvassing Board voted 2 to 1 to count it as a vote for Gregoire. [Canvassing board member Dan Satterberg] dissented because of [the] past practice of declaring an "overvote" when the voter both fills in an oval for a declared candidate then writes a different name in the write-in line. Had the name on the write-in line been the same as the candidate next to the oval, [the] past practice would have dictated that it be counted as a valid vote for that candidate.
What a mess.

UPDATE: Over at Power Line, a reader adds this bit of information about the controversy:
The voter also filled in the bubble and wrote the name of the candidate in the write-in line throughout their ballot. It wasn't reported if the voter got first and last names screwed up in other races. What can you say about voters like this other than since they can't understand ballot instructions, they shouldn't be voting.
This at least explains something about this voter. I think, though, that when you have mixed up write in names, the practice has been to throw out ballots with different write in names than bubbles, and the write in name's last name conflicts with the bubbled in last name, then you have to throw it out. The reason: formalism should triumph in mass vote counting. The alternative is conflict, partisanship, and chaos.

As a thought experiment, say a million people line up to place a bet on the World Series. A woman with a Boston Red Sox cap walks up, hands a slip that places a bet on the "St. Louis Red Sox" to the guy at the window, and walks away. Should the clerk change the slip? Does the bet pay out?

Tuesday, December 14, 2004

Interesting SCOTUS Stuff 

Well, with some Supreme Court decisions finally coming out, perhaps it is time to engage in some light blawging. Although there is that delightful case that parses the meaning of "subparagraph" and "clause" in statutory construction, including a separate opinion by Scalia describing how the Court screwed it up, my attention is on the odd case of Florida v. Nixon.

Here, defendant Nixon committed murder, and the state had overwhelming evidence, including a confession. Mr. Nixon was mentally impaired, possibly brain damaged, and could not meaningfully participate in his own defense. For example, "On the second day of jury selection, Nixon pulled off his clothing, demanded a black judge and lawyer, refused to be escorted into the courtroom, and threatened to force the guards to shoot him." His lawyer abandoned all hope of winning the guilt phase of the trial, and decided to focus all attention on the penalty phase, hoping to avoid the death penalty. He tried to explain this strategy to Nixon, but was not very successful. Guilt was conceded during the penalty phase; and the jury ultimately recommended death.

The issue in this case was ineffective assistance of counsel, not unusual in capital cases. More specifically, it was argued that the concession of guilt was a de facto guilty plea and waiver of trial rights, which requires express consent and waiver, which Nixon did not (and probably could not) give. The Court unanimously rejected this argument.

Aside from the constitutional aspect, this case is interesting from a pure strategy perspective. The idea behind the whole defense is that asking the jury to spare the defendant's life is less credible if innocence is strenuously argued in the previous phase. Preserving a sense of honesty with the jury in the guilt phase by not truly contesting overwhelming evidence is an interesting strategy, if unsuccessful here.

In a trial of this magnitude (which must have taken some time, even if the evidence was not contested) the lawyers certainly develop a relationship with the jury; they pick up on personality traits, and decide what they like and dislike. It might indeed be difficult to wash off the smarm from vigorously arguing for a position that the jury certainly, by the end, would know is completely untenable. If the defense against guilt seems artificial, what would they think about the penalty phase arguments?

Then again, it seems like it could backfire. If a lawyer doesn't even fight to save his client in the guilt phase, why should the jury think he is even worth sparing in the penalty phase? The whole trial might feel like just going through the motions before they reach the inevitable conclusion: guilt and a death sentence.

When it comes down to it, bad facts are bad facts. There may be no getting around them, but I have to hand it to those lawyers who try. And I have to agree with the Court here; no second bite after trying this strategy. That would be way too much of a carrot to give creative defense lawyers, probably to the detriment of their clients.

Monday, December 13, 2004

MPRE Passed! 

Got my MPRE results in the mail, and even though I look considerably more ethical than I actually am, I managed to score high enough for California. That test sucks.

The Passion 

Watching Hannity and Colmes for some reason, and they are debating whether Mel Gibson's The Passion of the Christ was rightfully or wrongfully snubbed at the Golden Globe noms. I have not seen it, and cannot say anything to the substance of the filmmaking or other quality. But, to the argument that the most popular film of the year does not say anything about the best film of the year, I say:
When, exactly, did giving films awards start depending on quality?


One down, two to go.

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