Monday, November 29, 2004

Guarantee Clause Revisited 

A while back, I wrote a bit about a conservative group's challenge to same-sex marriage in Massachusetts under the U.S. Constitution's "Guarantee Clause," which guarantees a "republican form of government." The Supreme Court denied cert. recently (here's the CNN story).

Past posts are here, here, here, and here.

Affirmative Action in the News 

Today's Daily Bruin runs a story on UCLA Law prof Richard Sander's affirmative action study, which does a good job of explaining the details. Professor Sander is someone I admire greatly who takes the intellectual high road when dealing with his detractors, and this is no exception.

For those of you looking for a rebuttal, there is this essay by the Equal Justice Society.

Car Taxes 

I've heard a little bit about the proposal in California to tax cars by the mile instead of taxing gas. Apparently, Oregon will be testing such a plan in 2005. I agree with the counterargument that this will tax people regardless of whether they drive a fuel efficient vehicle or a gas guzzler; if the gas tax were repealed, then this tax would not encourage greater efficiency, though people would still be stuck with their higher gas bills as a significant market incentive to buy smaller cars.

However, this proposal is being dismissed too quickly, as the news story I link above points out. "Cars, whether fuel-efficient or not, take up about the same amount of space on roads and cost the state equally in road costs." This seems right. Road wear, a major public expense, is not tied to fuel efficiency. I suspect a vehicle's weight may play a factor, but I don't know whether heavier cars cause significantly more road damage than lighter cars, and this could very well not be significant. Road consumers would then be paying for road consumption in a greater proportion to their usage, rather than using gas consumption as a proxy.

Pollution and traffic are definitely problems, but it doesn't really make sense for motorists to "pay" for those problems through any tax. Instead, taxes might encourage more efficient behaviors, like carpooling or public transportation. It doesn't seem like a mileage tax would encourage these behaviors more than a gas tax. The main advantage seems like more equitable payment for road consumption.

My main beef with any scheme to tax motorists in Cali is that this state has spent the last century building a culture, especially in Southern California, of driving everywhere. Mass transit, therefore, sucks. A tax on cars thus becomes a general tax on getting where you want to go. But without any alternative, and including the higher costs of car ownership imposed by the state's transportation choices, the best choice becomes a very costly choice. The argument that car owners must pay for their road consumption rings a bit hollow to my ears; we have little choice. Raising arguments like this seems like a smokescreen for the state to extort more money for its coffers.

Further, encouraging car ownership is counterproductive in the pollution department. People with older, less-efficient vehicles, probably also low-income folks, are encouraged to hang on to their car since there is no reasonable alternative for a long commute.

I'd feel better about any car tax if the state or municipality had a plan to actually use that money on transportation and relieve the public problems of traffic and pollution. Alas, they do not.

Stem Cell News 

Everyone has already heard of the potential stem-cell triumph in Korea. I hope this kind of research pans out, and more people benefit from this amazing medicine. I also join Professor Bainbridge in pointing out that these are not embryonic stem cells, but umbilical cord cells, so it doesn't really inform the moral debate about such embryonic cells. On the one hand, it shows promise for the field in general, but on the other shows progress can be made without embryonic cells.

The other thing is that this breakthrough will come without California's three billion dollars, and without federal funding from the U.S. In fact, it seems that major news like this could fuel private donations and research investment without public funding, making California's bond initiative seem even more wasteful.

So it looks like we could achieve the dream alluded to by John Edwards'. Of course, without any of the things John Kerry was for.

Sunday, November 28, 2004

Back, and Full of Turkey 

Just returned home from NoCal. It turns out I can make a decent pumpkin pie.

Wednesday, November 24, 2004


Via Wizbang, I give you Rep. Loretta Sanchez (D-CA):
I believe that we made mistakes. The media certainly is not in our hands any longer, and, in particular, radio talk shows where that is completely in the opposition's hands, and they use it effectively against us.
(emphasis everybody-but-her's).
Even if this is just a "I voted for it before I voted against it" moment, it is a moment nonetheless.

Freedom of Speech in Hollywood 

Sometimes I wonder if people make too much of silence. For instance, Kevin Drum called for an outcry against affirmative action from right wing bloggers over progams that favored males; a preemptive strike against expected silence. Power Line notes the silence in Hollywood over the Van Gogh slaying in the Netherlands. For what? Does these groups' silence really condone the actions they are not talking about? Does it make them (or me, for that matter) hypocrits? Well, maybe.

Certainly people may speak about whatever they want, prioritize whatever subjects they want, or use their bandwidth on whatever they want. And for the most part, it seems silly to criticize people for not speaking about what certain people want to hear about; if you want to start discussion about some event, start your own blog or write a letter to the news, but why expect those who already have a pulpit to use it for a specific purpose, even if it is somewhat related to things that speaker has writter/spoken about before?

Two thoughts comes to mind when thinking about Hollywood's silence on Van Gogh. First, Hollywood is big, and the collective silence of everyone in the business on an issue like this could more easily connote apathy or not wanting to speak up against radical Islam, since that seems to be taboo within that particular social circle, because it is not nearly as big a burden on Hollywood to expect it to speak about most free-speech subjects, especially those involving film makers, than to expact, say, Eugene Volokh to speak about all free speech issues. Rational apathy is not an excuse for a large collective to be silent the way it could be for an individual. It is also less likely that the whole of Hollywood is ignorant of the Van Gogh events than it would be for an individual to be unaware of them.

Second, by not speaking on this issue, while at the same time speaking quite loudly on "dissent," George Bush, and issues like the FCC stifling speech, the message changes. When one says "I should be able to say what I want because I have a right to free speech," it naturally appeals to all of us. Who isn't for free speech? And who are those people trying to take it away? Those monsters! But when that same crowd watches another's speech supressed in what certainly seems like an attempt to silence a certain point of view on a broader scale, and yet says nothing, the previous free speech message rings hollow. It sounds more like "I should be able to say what I want because I am right. I really don't care if people with opinion X are silenced, because they are wrong." The sense of justice is gone.

Now, people should be able to say things in their own self interest, and are free to think that other's should not speak certain viewpoints. But to invoke the name of freedom in one's cause, presumably to gain support or a bigger mouthpiece, while not really believing in it, seems wrong to me. Hollywood should speak up about Van Gogh.

Tuesday, November 23, 2004

New U2 

Like the dutiful fanatic I am, I rushed out to buy the hard copy of the latest release by the greatest band of all-time, U2: How to Dismantle an Atomic Bomb. The first listen was a bit disappointing. You know the songs on Achtung Baby that come after Mysterious Ways that are just ok? I often end up skipping those when I'm not in the full-album mood. That's what Atomic Bomb felt like (other than Vertigo) on the first time around. It certainly doesn't have the rock and roll hallmarks of All That You Can't Leave Behind that brought the band back from the brink of techo-irrelevancy. In short, I wasn't impressed.

On second listening, however, I found a few songs growing on me. It still isn't a rocker by any means, but not bad fare either. This is not really a single-driven album (again, other than Vertigo), but all-in-all a good effort; no songs are really stuck in my head, but there are none I want to skip either. It feels something like Boy in that regard, but from a band that has changed a lot in the last twenty years. It has a quieter tone, driven by lyrics rather than catchy riffs, which may disappoint some who expect the album to be more like its opening track. If I had to predict, this one won't be a huge radio success, but should rank solidly among U2's other works, in my mind behind The Unforgettable Fire but ahead of War.

Monday, November 22, 2004


So I was curious today and did a Google search for Kazaa Lite, the no-spyware version someone made of Kazaa. It turns out that Google has removed several entries from its listings because of a complaint under the DMCA, which I was unaware of before seeing it listed at the bottom of the search page. This, however, has nothing to do with the RIAA; the owners of Kazaa, some of the uncleanest hands in copyright, requested that links to infringing materials be removed after giving notice under Sec. 512(d) of the DMCA. Kazaa was claiming direct infringment in its copyrights by other software, including Kazaa Lite in all its incarnations. Perhaps this is old news, and I do remember hearing that Kazaa was in a huff about their copyrights not being respected, but the idea that a search engine may not link to content which others are posting is repugnant, though Kazaa is clearly within their rights under the DMCA to request this takedown, and Google is wise to avoid potential liability.

Perhaps this is a benign instance of DMCA nuttiness. After all, this is a clear case of infringement of both copyright and trademark, no matter how hypocritical of Kazaa this action is. But isn't it a bit worrisome that content owners can force certain links to disappear from search engines if they are arguably infringing? Would any engine risk litigation by an agressive company in close cases? Would the alleged infringers spend the resources to vindicate their position? This is a potentially powerful tool in the hands of content owners.

Fortunately, the complaint linked above lists several sites that Kazaa is trying to keep people away from, which you can just copy and paste into your browser, should you desire.

Peterson Follow-Up 

Having only conducted one trial myself, and having watched a handful more, my experience in trial matters is certainly limited, but my impression of the Scott Peterson verdict after reading this is that it was fairly decided, despite what TalkLeft might say. The jurors seemed to have taken their roles very seriously, especially those who did not make it until the end. "Greg Jackson, the original foreperson on the jury, asked to be let off the panel because he thought public sentiment may have influenced his decisions." The juror that was dismissed from the deadlocked jury also seemed distrought: "dismissed juror, Fran Gorman, actually broke down in the jury room . . . because she was angry at herself for breaking the rules against individual research on the case."

Again, in my limited experience, juries are quite thoughtful generally, although some individual jurors may not be the brightest bulbs. There is no reason to expect this jury did not carry out their duty (and will not continue to do so in the penalty phase) with the utmost care and mindfullness that a man's life hangs in the balance. Certainly it is difficult to reconcile the guity verdict with the months of second-guessing and media skepicism. After all, didn't we hear on a daily basis how huge holes were blown in the prosecution's case? So how could they possibly have found him guilty?

Only the people that watched the trial from beginning to end and were able to weigh the evidence in their own minds can properly give an answer on guilt. From the piecemeal accounts, I haven't heard anything yet that would lead me to doubt this verdict is sound. I recommend that we all have faith in the system, and hope now for a just punishment. To me, I don't see how this jury could give him anything but death, but we'll see. Juries are surprising creatures.

Sunday, November 21, 2004


Apparently, Kevin Drum is expecting a "stream of outraged posts and crosstalk" from conservative bloggers over this use of affirmative action that benefits boys over girls.

And I expect a torrent of posts from Kevin and like minded bloggers over why this form of affirmative action is great. Unless, of course, it turns out after all that the so-called "diversity" proponents scream about really does mean non-white, non-male, non-straight, and, most importantly, non-conservative.

Or we could do what Pejman Yousefzadeh suggests, and blog about whatever we want. But for the record, I too am against this kind of affirmative action that benefits males over females.

Saturday, November 20, 2004

Handcrafting Live Blogging: Day 2 

Continuing the long process of getting a law review issue ready for print by making everything look nice on the page. Three articles down, two to go.

8:46 AM: Came in early to work on the last article that needs footnote tweaking. But first! Coffee. Got some flavored coffee out of the machine, which tastes kinda good, but is making me question my masculinity.

9:03 AM: It's quiet here in the morning on a Saturday. Was there no 1L class admitted this year?

9:25 AM: Authors: sometimes they're right, sometimes they're wrong. Maybe that comforts you, and maybe it doesn't.

9:38 AM: All this law review stuff sure gets you a lot of Lexis points. Just cashed them in for a Black's Law Dictionary the other day. 4400 points. Actually, I know some non-law review folks with more, but who's counting.

9:47 AM: The sounds of handcrafting: The Kinks are the Village Green Preservation Society, and The Pogues fabulous album If I Should Fall from Grace With God. The former is the classic work by the British invasion band, the Kinks, which is kinda under the rader with American audiences. It has that "Picture Book" song from those commercials where the guy has the squares of cardboard which become pictures. The latter is a bunch of angry Irish guys. For example, their Christmas song, the classic "Fairytale of New York," rhymes "maggot" with "faggot." Get the picture? Oh yeah.

10:31 AM: YOSHI! Done! The other folks should be here at about 11:00, and finish this thing up.

10:32 AM: Even though I'm done with my work for this issue, the Law Review continues, unabated. One of my managing editors has yet to pick up his stuff for the assignment due Monday. This worries me.

10:35 AM: Gonna break the live blog now, since there really won't be anything I'm doing live. Real blogging to resume, with any startling handcrafting events updated with a new post.

Friday, November 19, 2004

Handcrafting Live Blogging 

Today, the UCLA Law Review is putting its final touches on Volume 52, Issue 2. It is a time consuming process, whereby two members typeset the words on the page (in Word), the EIC checks it out, and I scramble to finish footnote stuff. The players: Me (Ichi), The Angry Clam, Cosimo, and Lesley the Chick.

UPDATE: 10:19 entry modified slightly to remove author name.

9:28 AM: Arrived at the office, read a few blogs, and now its down to work. I spent a good part of last night giving the footnotes one last going over. I'm really tired of looking at those, but I always manage to find one little thing in each article (comma missing here, semicolon there) that makes it worthwhile to give them one last eyeballing.

9:41 AM: Had to make the first trip to the library to check on a source; you'd think with all the cite checking we'd be done with that now, but no. There is always some little inconsistency (here, one source looked mysteriously like another previously cited source, but I had to make sure). Sometimes cite checkers do different things in different parts of an article, which have to be ironed out in the end. A never ending process.

9:45 AM: One article is good to go, pending a final check to make sure the last changes were all entered correctly electronically. Doing a victory dance in my mind. The rest of the folks should be here in 45 minutes, so it is important that they have something to start on.

9:59 AM: Finished a second article. This issue is relatively light compared to the last few, which I am thankful for. Having two articles ready for handcrafting when everyone gets here is important, otherwise they are sitting around wasting time, and when the Clam is around, that's trouble.

10:07 AM: Our fearless leader, the EIC, has just walked in the door. And there was much rejoicing.

10:19 AM: A few words about some of our articles. One of those ready to be handcrafted is [on] Courts as Forums for Protest, an interesting article that looks at the history of litigation as a way for social causes to gain widespread attention, looking at the women's suffrage movement, anti-war litigation, and the current Guantanamo issues. Another is a student comment by our Chief Articles Editor on using 42 U.S.C. Sec. 14141civil rights cases, brought by the government against law enforcement to enjoin unlawful practices, as tools to fuel individual Sec. 1983 litigation. Look for these to be available on Lexis and Westlaw (for law students with the free access), and finer law libraries near you, in about a month.

10:31 AM: CRISIS! The computers cannot access the shared drive, where all the articles are located. IT is on the way.

10:33 AM: Crisis over. Apparently this was a false alarm perpetrated by the EIC because his computer couldn't get on the drive. On another note, the Clam and Lesley are here now. Let the games begin!

10:39 AM: Shazbot. One of the student comments was given back to us today with fairly substantial stuff changed, so this will occupy some time. I like to have my role in handcrafting to be minimal, having done my work the week before, leaving time to drink beer and laugh at others' misery. Now I have to slog through this last edit.

11:12 AM: Lull. Sorting out the last kinks in the other three articles may take longer than I thought. Part of the problem is that the LR is a three headed beast at times: I do my job in conjunction with the EIC needing to make changes, and our office manager needing to enter the changes. The process works in drafts. Often, I won't see the latest draft for weeks after my last bite at the apple. I can't devise a better way to do this, but it is frustrating to have a job to do which, in isolation, is hindered by the needs of these other parties. Part of the problem is also communication: when I notice an issue, and need clarification, chances are that the other people involved are doing something else, and it will have to wait a day or two, or at least several hours, to resolve. Right now is one of those times where I have to wait, and it is frustrating.

11:17 AM: The Clam is hard at work. No profanity, so it must be going well.

11:18 AM: At various points today various members of this operation will need to leave to fulfill other obligations, which will slow this process down. We also need to be done by Saturday night, which complicates things. Good times.

11:22 AM: Ugh. I'm bored. Going to talk to the Clam.

11:41 AM: Watched the Clam play a 1998-era civil war game. The Rebs were routed. Still waiting for changes to be entered to one of the articles. Still in the lull. I have a banana.

12:07 PM: Back in the sadle, working on the article about Antitrust, A New Test for Predation: Targeting which has a bunch of cool Matlab diagrams.

12:10 PM: FUCK. The last round of changes for that article were never entered, so I have to wait some more. I hope we have lunch soon.

12:23 PM: Anyone know where I can get a copy of National Underwriter, Life & Health/Financial Services Edition?

12:39 PM: Right now it is the countdown until lunch, which is the best part of handcrafting--food on the university dime. We're thinking Baja Fresh. Boy, is that gonna be sweet. But for now, back to work. This article is about Financial Statement Insurance as an alternative to auditor liability. I just got out of the library, walking past the same binder on Iowa child welfare law that I always pass when using the secret entrance.

12:55 PM: The EIC has to step out, so I'm stuck going over the pages to catch "no-nos," or little bullshit publishing things that we seem to care about. For example, no 3 lines in a row may end with the same letter, or any combination of one letter words, two letter words, or punctuation. It also has to have "balance," or something. Good times.

1:06 PM: Luuuuuuuuuunch. FUCK YEAH!!!!

2:37 PM: Back. Well, been back a little while now. Still doing the thing where I look at the pages to make sure everything looks good. I think I'm doing it right, and anyway the EIC will get another shot at it after we're done. Now that I'm full of burrito, the work may go a little slower, though.

3:04 PM: On the way back from lunch, there were these two girls that started crossing the street in front of us just a few seconds before their light turned yellow, and they were just totally strolling along like jackasses. What's up with that?

3:21 PM: One of the authors cited a work by somone named Adriaan ten Kate, so when referring to the author by last name, so you start sentences with the lowercase "ten Kate"? That's something for you all to think about.

4:01 PM: Down the hall from the Law Review office at UCLA is a restroom. Not just any restroom, but The Coldest Restroom in the UniverseTM. Above the door there is a 5 foot wide air conditioner intake. This restroom is at least 30 degrees colder than the rest of the building. I mean, holy crap, this restroom is cold. It's also small--there is one broke-ass urinal and a stall about 2 inches away from it. I swear ice crystals form in there and you can see your breath, even in the middle of summer.

4:26 PM: Just about done. There is only one article not ready to be handcrafted, and it's a student comment that's in good shape, so it won't take long. Yah.

4:28 PM: The Clam is dividing his time between the handcrafting, Gettysburg, and looking at Something Awful. The antitrust article's second half is about pizza, which pleases him. Lesley continutes producing high quality work, but since the EIC has returned, and I'm no longer checking the handcrafted pages, I don't care.

5:06 PM: The Clam has finished one article, and it looks good. Just to allay the fears of any authors that may be reading, it's not that the Clam is shirking his handcrafting duty by playing Civil War games, it's that there is a lot of downtime as the EIC checks each page. I think the part I checked came out looking good, but I just haven't done it as much. I'm more into footnotes.

5:08 PM: Profanity. Perhaps involving the ten Kate issue, supra.

5:38 PM: Everything is going according to plan. William Shatner is "singing" Rocket Man, and Lesley now want's to be known as "the Chick." So call her that.

6:11 PM: Just signed up for BarBri and PMBR. No reason.

6:15 PM: Might make it an early night tonight. Usually handcrafting can go until like 10:00 or so. I can easily finish what I need tomorrow, and I miss my girlfriend. I also have to take a rented DVD back to the video store. It's Gone With the Wind.

6:24 PM: Was feeling eejitous:
The name of the rose
Umberto Eco: The Name of the Rose. You are a
mystery novel dealing with theology, especially
with catholic vs liberal issues. You search
wisdom and knowledge endlessly, feeling that
learning is essential in life.

Which literature classic are you?
brought to you by Quizilla
6:43 PM: Found some Law Review beer in the Law Review fridge. Fortunately, nothing more this evening will require my keen eye.

7:29 PM: CRISIS 2: ELECTRIC BOOGALOO! We can't find the Thai food menu, and we really want to eat Thai food.

7:29:30 PM: We found it.

7:48 PM: Holy Shit--found a text-based browser version of Where's Waldo?.

8:00 PM: More food.

8:43 PM: Well, this is the final entry for today. Three articles down, two to go. Everything looks good so far. Good night everybody. PEACE!

Thursday, November 18, 2004

Way to Go, Chris 

Congrats to Chris Geidner for the Insta-lanche. 'Bout time more blog readers read his stuff.

Wednesday, November 17, 2004

Microsoft's Problems 

Now, I dislike Mircosoft: I think its products are inferior, its programmers are sloppy, and they purposely put better companies out of business through market share. Wizbang has a post up about Microsoft getting sued ever time it includes a new "free" feature with a
Windows component, which is probably true, since I doubt these businesses appreciate having a competitor given away for free. But therein lies the problem: Many users expect an (often expensive) operating system to do "everyday" things out of the box, like, perhaps, play a DVD, but every new feature would put someone out of business that currently offers that service.

There is only one solution that I can see--an operating system must contain the essential system functions only, which is basically running hardware. Nothing else. The company would be free to sell an "everything else" CD with a bevy of Microsoft products that set up the ready-to-use environment people are used to, but it would be separate and voluntary. The OS would, of course, cost less, eliminating the illusion that all these other products are free. It would also eliminate the "integration" of features into the operating system, so it wouldn't take an act of God to remove Windows Messenger from one's computer (as is the case currently).

The big upside would be that people can customize their systems, if they choose, without spending a day fighting with Windows's emphatic pleas to launch a "wizard" or warning you of the dangers of not having the Microsoft product as the "default" for a certain file. Windows is now the Candy Land of operating systems on its surface, and is quite annoying. My ideal world would also make access to the OS code easier, but that's beyond the scope of this thought.

Microsoft is deservedly a big name, and should be able to profit from that name, but the software market has demonstrated pretty clearly that continuing to fool people into thinking that certain software is just part of the OS, when in fact it is a product sold to them (and not necessarily the one they would have chosen), stifles innovation, and lessens competition.

Monday, November 15, 2004

Law Review 

Posting quantity may be low this week. Law review stuff.

For those who care.

Sunday, November 14, 2004


Insta-attention for ninjas, but Ichi-readers have been in the know for some time now via the link way the hell at the bottom of the page, and the book on the left. Buy the book!

Holy Crap 

In the Holy Crap segment tonight, this story about a 59-year-old great-grandmother is pregnant with twins. This means the children, when born, will be younger than their own nieces' or nephews' children's children.

Saturday, November 13, 2004

Nerd Alert 

OxBlog has a complaint about the timing of Star Wars: Episode III:
Offhand I can't remember, but I think it was Pejman who pointed out the extremely annoying (chrono)logical flaw in the premise of Episodes I-III, i.e. that in the interval between Episodes III and IV, which is clearly less than thirty years, the entire known universe has forgotten about the Jedi so much so that they believe the Force to be a myth.
I never got the sense that in Episode IV the "entire known universe" had forgotten about the Jedi. The force is clearly very much alive: the rebel alliance leaders invoke the force before sending troops into battle, Jabba knows when he Luke is trying an "old jedi mind trick," and admiral Motti at the Death Star conference remembers the Jedi but puts his faith in technology instead.

The feeling that the force has become a mere myth is probably because of Han Solo, who extols the virtues of "a good blaster at your side," and claims that nothing he has seen convinces him that there is one "all powerful force conrolling everything." But this is entirely in character; the cynical, loner, space-smart smuggler who was probably a boy when the empire took over, has no use for such magic. Episode IV also spends a lot of time in the outer rim territories, which was probably never had much belief in or need for the jedi. Our view in the first films of the galactic attitude toward the jedi is a bit skewed. This is not to say there aren't those who keep the faith somewhere, or that the consensus was that the jedi and the force were myths.

Similarly, if the jedi were indeed wiped out by Vader, then it seems natural that a bit of their legend was washed away with it. People who believed that the jedi were truly the guardians of peace and justice saw them wiped out in a single generation. Were they all that powerful? Is the force really something to believe in? There are many reasons for citizens of the galaxy to feel disenchanted, but it doesn't follow that they have forgotten all about the force and the jedi. Force moral could be low, but they would still remember full well.

The timeline is necessarily short, since Luke and Leia must be conceived before Anakin becomes vader, making the true timeline something like 20 years between episodes III and IV. This cannot be avoided.

Friday, November 12, 2004

The OmbudsGod remings us that Veterans Day was originally Armistice Day, commemorating the end of the "War to End All Wars." Somewhat belatedly, and because I probably won't be blogging too much this weekend, passers by should remember those who died in that largely forgotten war, and how staggering the power of human destructiveness can be. It's my first attempt at an internet table, so forgive me if it looks a little weird. Data from World War I.com.

World War I Casualties
Mobilized Dead Wounded Missing/PoW
Russia 12,000,000 1,700,000 4,950,000 2,500,000
Germany 11,000,000 1,773,700 4,216,058 1,152,800
Great Britain 8,904,467 908,371 2,090,212 191,652
France 8,410,000 1,375,800 4,266,000 537,000
Austria-Hungary 7,800,000 1,200,000 3,620,000 2,200,000
Italy 5,615,000 650,000 947,000 600,000
US 4,355,000 126,000 234,300 4,526
Turkey 2,850,000 325,000 400,000 250,000
Bulgaria 1,200,000 87,500 152,390 27,029
Japan 800,000 300 907 3
Rumania 750,000 335,706 120,000 80,000
Serbia 707,343 45,000 133,148 152,958
Belgium 267,000 13,716 44,686 34,659
Greece 230,000 5,000 21,000 1,000
Portugal 100,000 7,222 13,751 12,318
Montenegro 50,000 3,000 10,000 7,000

Thursday, November 11, 2004

On the Horizon 

Tomorrow I take the MPRE.

UPDATE: Today I took the MPRE.

Warm Planet 

For all you global warming junkies, here is a report by the Arctic Climate Impact Assessment, predicting impending doom due to man made atmospheric carbon dioxide concentrations. A lesser stated point is the impact of water vapor on the "greenhouse effect," and man's impact on heat trapping when water vapor is taken into account.

The ultimate test 

of a person's life could be how they are talked about after death, or some deep-sounding drivel like that. But stories like this one make such ideas seem very appropriate: "CBS appologizes for interrupting CSI to report Arafat's death" (via Drudge).


Apparently, I've been living a lie--

I'm an irredeemably eejitous, liberal, tight as fuck, pathetically simple-minded, dribbling child!
What are you?
Brought to you by Rum and Monkey

UPDATE: For those of us who wonder what "eejitous" means, this is the best I could do:
One entry found for eejitous.
Main Entry: eejitous
Pronunciation: ‘e-jE-tOs
Function: adjective
Inflected Form(s): -er; -est
Date: 2003
1 : easily distracted by pointless Internet quizzes or tests
2 a : in the process of taking an Internet quiz or test: (Oh, he’ll snap out of it in a minute, he’s never eejitous for long.)
Yeah, that's what I thought it was.

Rebutting Libertarianism 

Patterico posts here about why we should overturn Roe v. Wade based on the idea of self-government. To me, the decision is similar--it's about who the proper decision-maker is to make these social policy decisions--and judges seem like an exceedingly poor choice. However, the reason for courts deciding these issues that I have found most persuasive was Randy Barnett's reasoning in his book Restoring the Lost Constitution: The Presumption of Liberty. In it, he describes the judiciary's role as essentially reviewing government action for rationality; it must have a clear and identifiable interest whenever a liberty is infringed. This is a direct criticism of the current "presumption of constitutionality" used when deciding if a statute is unconstitutional: if any legitimate reason can be attributed to the legislature, then the statute is permissible.

The libertarian approach, asside from Professor Barnett's originalist arguments, is appealing because it would force government to articulate the reason for its action, not just any plausible reason, and the courts should strike down laws that interfere with personal activity for no good reason at all. On this ground, Barnett defends the decisions in Roe and Lawrence v. Texas as libertarian triumphs: the government cannot interfere with private citizens because of what are moral decisions. My recollection of his argument is a bit fuzzy, but since there are no concrete harms to another that flow from either abortion or private consentual sex, then the government has no rational basis, and the presumption of liberty is not overcome.

This is hard to argue with, but I think all serious conservatives with a libertarian bent who do not believe in Roe and Lawrence, not because of their substantive outcomes, but because courts are not the proper decision-makers, must overcome Barnett's argument.

As a start, I think that the choice to only value certain kinds of government interests as reasonable, effectively excluding "moral" laws, is itself a policy choice, and not one that judges, rather than legislatures, are particularly equipped to make. Law is one of many ways for a society to enshrine its shared cultural attributes, including morals. Precisely because certain things seem "icky" we forbid them, or encourage certain rather arbitrary behavior, and many are uncontroversial. Business liberties were long ago banished from substantive due process even though regulation under certain laws may be arbitrary, the age of consent restricts the liberty of minors (for moral reasons, not just to protect against sexual predators and psychological harm), and punishments for different crimes are handed out unequally based on the relative moral culpability of the accused.

Additionally, rejecting certain government controls justs shifts the relevant philosophy of government from one norm to another. Choosing the judiciary as the guardians of liberty under Barnett's set of criteria, unless I misunderstand him, is to choose utilitarianism as the guiding social norm. What is the basis for this? It may seem attractive because it is morally neutral, and especially non-religious, but can also produce immoral results, simply because they are rational. It certainly seems like an infringment of liberty to forbid people to sell their organs for transplant, engage in prostitution, or ingest illegal drugs, and certainly people argue for legalization of all these things, but is it really because of a harm to others that they remain illegal? To remain logically consistent, I'd say a court would be hard-pressed to uphold laws criminalizing the above actions. More likely, a court would fudge in order to uphold these moral results using the "right reasons" under a utilitarian rationale.

This was way too simplistic, but it's a start. Some things, though silly, can indeed be left to the majority because a court is not equipped to make the proper judgments.

More on Auctions 

In my previous post regarding bidding up auctions on Ebay, I took the position that such bids are not a bad thing, and do nothing more than charge the price that the buyer is willing to pay. The Clam, as is his wont, pointed out in comments that some states have laws against straw bids at auctions. Given that, I'll try my hand at some econo-blogging.

It may make good sense to forbid straw bids at auctions for a few reasons I can think of. Some goods more than others may be sold at auction more than others. Prize livestock and works of art come to mind as examples. Auctions seem like a good way to dispose of unique items for which adequate substitutes are unavailable. Demand for each item is high, so the price will naturally increase, and the higher the demand (number of bidders) the higher the price will be. Straw bids seem to influence this by artificially increasing demand; bidders are forced to "compete" with another potential buyer, thus driving up the price.

Why is this necessarily a bad thing? This may decrease overall efficiency. Markets are supposed to work because they capture the supply and demand for the item sold. But the item must have utility--the bull produces more cows and is valuable because a better bull will produce better cows, a painting has aesthetic value and is often an investment that is valueable because it can be sold later for a higher price. Artificially driving up demand skews the market price and makes people pay more for things than they are really "worth" according to their utility. A bull purchased for more than it could produce in the future is inefficient, as is a painting bought for an artificially high price. In some instances the increased price will be passed on to consumers, and the unfortunate purchaser will be at a competitive disadvantage having paid the premium versus those that hadn't.

This inefficiency might cause people to distrust the auction market, or else utilize it less, which could raise transaction costs. An auction seems terribly efficient; haggling is done in a very short time with all interested buyers in the room, and valuation is easy when not driven up artificially.

Straw bids may also be undesirable because it does nothing more than enrich the seller without him providing anything in return, making it hard to counter an inefficiency argument.

But I still stand by my assertion that straw bids shouldn't matter on Ebay. The goods are not necessarily unique; they are simply consumer goods or used goods. A buyer is not forced to pay a premium for a unique item since many substitutes are available. Many of the substitutes are available in the retail market, so the seller cannot successfully bid up items past retail price and expect sales. In many ways, the large institutional sellers are more like retail sellers than auctioners, especially with "buy it now" features and multiple listings. Bidding up may just be a way to more closely approximate a retail market in the convenient auction format.

In this way, Ebay is not made inefficient through straw bids, and state rules that prohibit them probably contemplate different situations. It's not that straw bids on Ebay would not be illegal under state law, but perhaps they shouldn't be.

Since many Ebay sellers are just selling junk, bidding up would not be a problem in most cases. The large-scale sellers who would bid up their auctions are also the ones opperating more like retail sellers, and inefficiency does not seem to affect these as much. Again, Ebay straw bids have the risk of winning the auction, and having to pay the commission while making no profit. The ability to set a reserve also seems to make straw bids a bit silly. In the end, I don't see bidding up on Ebay as a problem, though Ebay is free to craft its own contractual duties.

Wednesday, November 10, 2004

A while back I blogged about the pending Supreme Court case, Illinois v. Caballes, comparing the use of dogs to the use of other technology to reach into areas previously thought private. This article discusses the oral arguments and brings up some odd points, in my mind at least.

The justices, and the attorney for the defendant, brought up the issue of dignity, but did it in a rather overblown way. Attorney Ralph Meczyk stated "It is accusatory. It is profoundly embarrassing." Now, I don't exactly like the idea of the police sniffing (as the case may be) around my car, or home, or person, without my permission, but "profoundly embarrassing"? This, to my mind, conjures up images of being stripped searched in public, or some other social indignity that would cause a reasonable person to be ashamed for an extened period. I have never felt this way from a dog.

Justice Ginsberg also got in on the act: "dogs can be frightening, humiliating." I have met many a person that didn't like dogs, and I am not to fond of them myself, but to find being around a dog "humiliating" is a bit much. Again, why the legal hyperbole?

Justice Souter was able to keep the arguments down to earth: "'We're opening a large vista for dog intrusion,' said Souter, adding that he was worried about officers canvassing garages and neighborhoods with animals."

I wonder if Supreme Court justices ever get tired of hearing the same rhetorical exagerations, and I wonder if there is a danger of diluting the meaning of terms like "fundamental" or "humiliating" when they should be reserved for things that are, well, fundamental or humiliating. Certainly we can have a reasonable discussion about the privacy interests encroached upon by dog sniffs without pretending to be profoundly embarrassed by a dog sniffing a car trunk.

Holy Crap 

In the Holy Crap segment tonight, something quite literal (via Fool).

Tuesday, November 09, 2004

Kerry's Chances 

Well, we've all heard by now that John Kerry may contemplate another presidential run in 2008. I'm not sure what to think about this, since I'm sure by then the party will realize what they need to do better, but some qualities about Kerry just don't seem salvagable.

But here's a thought, half-kidding and half-serious: Kerry should write down every major decision he would have made if he were president, including pointing out when Bush makes a mistake and how he would act differently. Bush not committing enough troops? Say so, and how many should go, and how to get them. Problems brewing on the horizon with North Korea that Bush is ignoring? Say which those problems are, propose something, and see what happens later.

He should seal these in envelopes, mail them to himself via certified mail, and in 2008 open them up. Better yet! author Senate bills that do similar things for matters the legislature has control over. Heck, even make a mock judicial nomination list. There would be no more Monday-morning quarterbacking, no more vague undefinable assertions of plans, no flip-floppability--it would be put-up or shut-up. And if he is right a whole bunch of the time, great. More power to him.

Something! Anything! Especially because he might be up against John McCain, which would mean a thorough crushing unless he comes to play.

Rule of Law 

The AP reports here that New York mayor Michael Bloomberg's administration lost its challenge to a city law "that requires companies [the city] does business with to give the same benefits to their employees' domestic partners that they give to spouses." The mayor argued that the city would lose too much money by not engaging incompetitive bidding.

Although there may have been a technical or separation of powers challenge to the law that the story does not report, it sounds like the mayor's office's position was completely untenable. The city counsil may have adoped a rule that will cost the city millions, but that's the choice they made. The executive does not then have the power to refuse to follow that law, barring some higher power, such as a constitutuion or charter, that grants the mayor authority over such matters and forbids such power to the city counsil.

Just as Gavin Newsom had no power to marry people in violation of state law, Bloomberg may not contract with inelligible contractors.

Monday, November 08, 2004

News Flash: Market Charges Price Buyer is Willing to Pay 

Wizbang links here to an AP story about how sellers on Ebay bid up their items to get more money. The process as I understand it (from watching my friends do it): a dummy account owned by the seller is used to bid on the item, thus upping the price for anyone else who wants to buy it since they now have to outbid the seller until the seller feels the price is too high.

My intuition: so what? The buyer is not paying any more than they are willing to bid. This seems like nothing more than markets doing what they do; sellers will not charge more than they think they can get. There is competition from other sellers and retail outlets for many items. In other markets, bargaining is done the same way, only in reverse: the seller will start high, and gradually lower the price until the buyer and seller agree. No one is cheated. In fact, the seller runs a risk by bidding up his items, because if he wins the auction, the seller still owes Ebay the commission on the sale without making any money.

The only thing wrong could be if sellers breach a contract with Ebay for doing this, or if they can somehow avoid paying the commission on their own items they win from bidding up too much. But barring these, I see no reason why bidding up items should be wrongful.


A proposal for new top level domains seems not to be doing so well. Some of the selections are meant to encourage free speech by creating names that accurately label the activity people want to communicate, like .union, .complaints, and, my favorite, .sucks.

I'm a big fan of accurate domain suffixes to facilitate government regulation without trampling on speech rights. For example, a mandatory .xxx or .adult site for pornography would not prohibit the content from being on the internet, but would easily enable searchers to filter for this particular kind of content.

I had a discussion with Nick the other day about the viability of domain suffixes in the context of cyber-squatting--when someone takes a domain name identical to, or similar to, a trademarked business's name. We all remember in the early days of the internet when people snatched up "mcdonalds.com" and made the businesses pay handsomely for them. Setting up special suffixes would allow users to avoid the kind of trademark conflicts that are being used as a pretext to trample on speech rights, as seen here.

Personally I believe that trademark-like protections for domain names should be strong to prevent passing off one's internet address as another's. This would prevent predatory peddling of offensive content and avoid potential confusions without requiring a substantial amount of compelled speech by site owners (for example, disclaiming any releationship with a particular business). Perhaps in addition to offering a bevy of domain suffixes, allowing strong trademark-like protections for certain suffixes could help facilitate speech and business coexisting. For example, .com could become a business-only arena, and strong trademark-like protection could attach to address names.

Some solution needs to be devised: significant confusion may result from a laissez faire approach, as well as first capture problems and unfair competition-like concerns. I don't see the internet as being free from regulation forever, and speech-labeling seems like the least restrictive way to go.

Great Moments in Scalia Dissent 

Having just read United States v. Mead Corp. for admin law, here's a great line from Scalia's dissenting opinion:
The Court has largely replaced Chevron, in other words, with that test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect): th' ol' "totality of the circumstances" test.
United States v. Mead Corp., 533 U.S. 218, 241 (Scalia, J., dissenting).

Affirmative Action, Part 1 

As I posted before, Professor Rick Sander is blogging over at The Volokh Conspiracy this week about his recent paper on the empiracle effects of affirmative action in law schools on blacks. The first post is here. Anyone who happens by this site and doesn't already read the Conspiracy is advised to check it out.

Sunday, November 07, 2004

Still More on Same-Sex Marriage 

The great ampersand has written an interesting post about the logic of denying same-sex marriage based on the idea that children should be raised by opposite-sex couples. His assumptions are basically that 1) equal treatment of same- and opposite-sex marriage by the government does not say anything about their comparative worth, while unequal treatment stigmatizes same-sex couples, and 2) making this argument "use[s] lesbian and gay lives for [an] op-ed statement" about raising children. I don't understand what the second argument is, but the first seems flawed; the government often quite validly makes value judgments, and equal treatment can indeed detract from the overall social benefit that the government seeks to provide with a certain scheme.

Government neutrality toward issues may sometimes be the most beneficial approach. We especially value it, as Ampersand points out, in free speech jurisprudence. Since we do not trust the government to make the right judgments about content and viewpoint, we require government neutrality. This does not mean that equal treatment is always value neutral. Some reasonable people believe that by not implementing race-based affirmative action in higher education, then the government is actually expressing an unequal judgment about race in schools.

But neutrality is not the approach we necessarily want from government, not because one activity will necessarily be harmed by the equal treatment of another, but because overall social benefit may decrease. For example, the government encourages giving to charities by allowing a tax deduction for certain contributions. If the government were to also allow deductions for gambling as well, this would not at all detract from the value of giving money to charity, but may change people's behaviors and decrease the overall social benefit that the original rule was designed to promote. In the marriage context, assuming that neutrality is the best approach assumes two things: first, that there is no reason to favor opposite-sex couples over same sex couples, and second, assuming there is a reason, that allowing opposite-sex only marriage promotes that result. Here, we are just dealing with the question from Ampersand's post about raising children.

Assuming for the sake of argument that opposite-sex couples are better at raising children, then the question is whether the state benefiting such couples is reasonable, and whether allowing same-sex marriage would dilute that benefit. To me, this is at least plausible. Allowing same-sex marriage would be encouraging (as opposed to just permitting) less-beneficial couples to exist by promoting them as a social norm, despite the assumed fact that opposite-sex couples are better for raising children. By encouraging something less-than-optimal, it would on balance be worse for society than it would be if only opposite-sex couples been encouraged by the state. It may also, at the margins, encourage some to enter same-sex marriages and raise children that might otherwise have entered opposite-sex marriages, increasing the number of children raised in sub-optimal environments.

This, of course, I my attempt to answer only one small slice of the argument, but I hope to persuade some that the argument cannot rest on the idea that government neutrality makes no value judgments, or that the government should not be making value judgments at all.

Go Blogging 

For some Sunday Go blogging, I turn to the most famous move in Go history: the Ear Reddening Move of Shusaku. Honinbo Shusaku lived during the middle of the nineteenth century, and is arguably the greatest Go player to ever live, also popular today from the comic book series Hikaru no Go ("Hikaru's Go"), a 23-volume manga series about a board game with a fanatical fan base.

Go achieved great attention during Japan's Edo period, where the game enjoyed government patronage. The history is surprisingly exciting with much internal intrigue and political ambition, but too involved to go into here. Shusaku's talent was discovered early on, and he quickly rose through the ranks of the professional Go world. At the point when this particular game was played, Shusaku was already well on his way to being the desciple of on of the leading Go schools. The "Ear Reddening Game" was against Gennan Inseki, widely recognized as a master in his day.

ermosThe game began badly for Shusaku--he fell into a trap early on, and attained a very poor position. By all accounts, Gennan was winning handily. Then came the move, marked in the diagram as the move in the center with the circle. The story goes as follows: most experts studying the game in another room didn't think very much of the move right away, but a doctor also observing made the following observation: "I don't know much about go, but upon seeing [that move], Gennan's ears flushed red. That was a sign of him being upset. The move must have taken him by surprise." Indeed, it must have, for a contemporary professional described the move like this: "[It] is the central point for attack and defense. It lightly parries White's [previous move attacking the bottom Black group], it offers assistance to the four black stones below, it expands Black's [framework of stones] at the top, it erases the influence of White's thickness to the right and finally it aims at reducing White's territory on the left side. In short, the influence . . . is radiated all over the board. It is the kind of move a player only makes onece in a lifetime." Indeed, the true significance is difficult for a novice to see, but Go is a game of patience and influence, and crushing blows often manifest themselves many moves later. Black did not have the lead right away, but this was clearly the turning point in the game.

Shusaku, of course, went on to win this game. As far as board games go, this is "The Play."

Nerd Alert 

Over at Ignore Moore, there is this post titled " How can Moore's 55,949,407 fat cells be so wrong?" While this may have the desired rhetorical effect, the numbers seem off: "The average adult has between 40 and 50 billion fat cells." Never mind that this number comes from a site called The Bible UFO Connection--to adapt a phrase, I'll call it "crazy, but accurate."

Saturday, November 06, 2004

Day 4 


Justice, Much Too Late 

Orin Kerr points to this story (via TalkLeft) of a wrongful conviction--a man who served twenty years in prison wrongly accused of child molestation. The two victims, 4 and 6 at the time, recanted their stories, triggering a retrial, and the charges were dropped. There is no accusation of prosecutorial misconduct.

However, there is another tragedy here. The real abuser, then a nine year old cousin, was never prosecuted, and since he was a juvenile, would have received treatment and not prison. He is now serving a life sentence for murder.


It's been a fairly good Saturday for me so far. I haven't done a lick of school work yet, managed to get an oil change, and was pleasantly surprised when my oil change came with some free tacos. I haven't encountered any rabid bats, so I haven't had to resist the urge to play hacky sack with one. I respect the power of the crossbow.

Over at Andrew Sullivan, this email is interesting, analyzing the election results in states that had same-sex marriage issues on the ballot versus those that did not. Not surprising, it is unclear what impact, if any, same-sex marriage had on the turnout for Bush. I hope this talk goes away soon. But I doubt it; some people I overheard after the election, while trying to pin the blame on anti-gay bigotry, also managed to question those bigots' intelligence further by pointing out that Kerry is against same-sex marriage as well. it has far too much traction for liberals to abandon, and will only snowball into conventional wisdom by November, 2008.

The same-sex marriage issue is interesting since it is a prime example of just how orthodox liberal thinking can be. Opposition to court-imposed same-sex marriage can only come from irrational hate, because there is no other reason to oppose something so fundamentally fair and just, right? This is actually a strange thought; something so fundamentally wrong has never been noticed in the thousands of years of civilization, nor had it occurred to any powerful government officials that there was anything wrong at all before a few years ago. But then, once the idea is planted, the solution is so clear, so obvious, that it is impossible to think otherwise? Something is strange here.

For another angle, Glenn points out the Cryptonomicon connection. Interesting stuff.

I'm not trying to make any judgment about liberal orthodoxy vs. conservative/religious orthodoxy, but the former's ability to ignore their belief structure enables them to argue that their way of thinking is somehow empirical and provable, while their opponents rely on mysticism. This, I gather, is what's insulting to "middle America": the elites thumping their scholarly-looking tomes and screaming "truth" for things based upon a philosophy with no more inherent worth than the average church-goer's.

I think a recognition that the issue of same-sex marriage is complicated will put liberals a long way toward winning back adherents in middle America, and this general philosophy can go a long way to help in future political contests.

Later on, I need to read some stuff for administrative law. So far behind.

Tear Them Down! 

The Donald is being sued for copyright infringement for two condos he is building in Miami. An architect claims he brought similar designs to Trump, but they were rejected, and is now dismayed at seeing these similar buildings being erected on the coast. He is asking for an end to construction and destruction of the buildings.

Architectural works are protected by copyright, specifically named in 17 U.S.C. Sec. 102(a)(8). Although it is unclear whether constructing a building from architectural plans infringes on the copyright in those plans, I will assume there is infringment here. Although injunctions are available for copyright infringment, 17 U.S.C. Sec. 502, a court may refuse to enjoin construction when the risk of forfeiture would be too great. I imagine that the massive construction of condos, with enough completed for the architect to recognize the design, would be a very significant hardship for Trump, and is unlikely to be enjoined. Any futher copying of plans may be enjoined, but enjoining construction would indeed be unusual.

As for tearing the buildings down, destruction is an available remedy under 17 U.S.C. Sec. 503, but again it is unclear whether a building is actually a copy of a copyrightable design, and thus available for destruction. Furthermore, I cannot find a case where buildings were destroyed for copyright infringment. Damage awards, however, seem fairly common, and would be a much better remedy in this situation than destruction of the buildings. The amount of waste upon destruction would be enormous, while the losses to the architect are purely economic, since he wanted to sell his design in the first place.

To me, the claim that the buildings should be destroyed is rather ridiculous, and will surely not survive.

Friday, November 05, 2004

The Answer 

He's got it all figured out:
The evil Kapitalist Konservative Khristians (KKK), under the supervision of the reverse vampires, and the "saucer people", who invented guns in order to kill black people and possibly gays, having taken control of the United States of Amerika by force in 2000, brainwashed 51% of the country (and at least one Canadian Kanadian) in order to take control of the world's oil supply, which will be swiftly converted into weapons that will be used to arm the South (who, being obviously stupider than real people, are more easily brainwashed) in an ingenius campaign to avenge Daddy Bush, who is of course a cyborg under the control of the Reverse Vampire and Saucer People Guild (RVSPG), and impervious to the bullets of his ally and fellow RSVPG borg Saddam Hussein in order to trick the whole world into killing the brownskins and thus securing land and women for the secret underground invaders to inhabit and impregnate, creating a new race of SuperHumans under the complete and utter control of Karl Rove, supreme emperor of the RSVPG and secret Lord of the Sith!
People who think I write awful reheated conservative stuff haven't met Dowingba. Kick ass.


Pejman Yousefzadeh is learning to play Go, the ancient Chinese board game that was made into a high art in Japan. Frequent visitors to my site (both of you) may have noticed that I have a few Go links on the sidebar, and though I by no means can brag about my skills, I'm no slouch. Since the one unique thing I might bring to the blogosphere might be Go-blogging, I suggest everyone take up the game!

Encourage Pejman in his habit. Smoke as you are doing so.

Affirmative Action and UCLA Law 

As many readers of better blogs will have heard by now, UCLA law professor Rick Sander has recently written an article on an imperical analysis of affirmative action on producing black lawyers is society. Professor Sander is guest-blogging over at The Volokh Conspiracy, and will no doubt have interesting things to say for the next week.

Today, the dean of our law school sent out this letter to all students and faculty regarding professor Sander's article, which I reproduce below (some editing done by me for length, and all emphasis is my own):

As many of you are aware, Professor Richard Sander of our faculty has authored a study that examines affirmative action in American law schools. The article will be published later this month in the Stanford Law Review. . . .

Professor Sander has contributed importantly to the debate on affirmative action through his research. As with all empirical work, people will have different views concerning the quality of his data, the assumptions he makes and the way in which he has specified his model. I hope that the work will spark students and social scientists both here and across the nation to test both the robustness of his findings and the validity of alternative hypotheses.

Regardless of these findings, Professor Sander’s work does not, for a moment, cause me to question the value and contributions of our Law School’s students of color. Since coming to the law school in August, I have been overwhelmed by how much our diverse student body contributes to the lifeblood of this institution. . . . The importance of diversity of all types—racial, ethnic, ideological—cannot be underestimated in an institution that produces people who will become our nation’s future leaders.

Over the past few months, I have had the opportunity and privilege of meeting a great number of alumni, many of whom are people of color. Some have proudly told me that they came to UCLA because of the affirmative action policies that were in place prior to Proposition 209 [California's proposition outlawing race-based admissions policies]. . . . Their achievements are enormous and they have made a huge and positive difference in our community.

. . . .

I believe that we should consider the publication of Professor Sander’s article an opportunity to engage a significant public policy and legal issue that has important implications for the Law School and the legal profession as a whole. One’s time in law school is a time during which one should be provoked to debate the major issues of our day in a way that is respectful, robust and informed.

. . . .

In the meanwhile, as always, I encourage you to discuss Professor Sander’s article with other members of the community. I hope that includes me.
I had professor Sander for my first year property class, and found him to be one of the nicest human beings alive, which is why I find the letter above rather cold. First is the school's need to distance itself from the article by reaffirming its commitment to the spirit of affirmative action: citing anecdotal evidence of successful black alumni, praising diversity in the school community, and assuring us that the school is producing a diverse group of leaders for the future. Second is the call to dissect Sander's findings through "test[ing] . . . the robustness of his findings" and the "validity of alternative hypotheses." My politics certainly shade my opinion, but this looks like a call to (or a reassurance that many will try to) debunk Sander's findings.

This email is not in response to anything I've heard around campus, the election being the buzz these days. No one was up in arms; no one was making public noise to the point where the administration needed to publicly address the situation. The letter was not reaction, it was action.

Any piece of scholarship should, of course, be subject to debate and withstand outside scrutiny, but I doubt we would see a call to be wary and "test" the theories of an article purporting to find that affirmative action succeeds, while singing the praises of the affirmative action's opponents. To me, this letter seems inappropriate. I don't blame the dean; he has a tough job.

Holy Crap 

In the Holy Crap segment tonight, people from Texas are among the most badass on the planet. The proof is this headline: Texas Teens Play Hacky Sack with Rabid Bat. 'Nuff said.

Thursday, November 04, 2004

Sly or Naive? 

The BBC has this list of posts about why people voted for Bush (link via InstaPundit). There is a wide range of interesting responses, but most interesting is this one:
I voted for Bush because I a run a larger corporation that needs him in office. Without the Bush administration's alterations of previously existing law, my company would not be able to make such large profits. The administration has provided the necessary loop holes in environmental and fair competition laws. They have allowed us to exploit the intent of the law without fear of prosecution.
J Black, Atlanta, GA
Now, there's a place to submit comments on the side, but I doubt they all go the main site unedited and unchecked. There are then three possibilities. First, Europeans really are smarter than us, and can easily pick out the wise-ass/sarcastic/idontknowwhat response out of the middle of serious and diverse responses. Second, the BBC made a mistake and/or are idiots. Third, they did it on purpose, but for some unkown reason; even though some might take it seriously, certainly not enough will to attribute some agenda to the Beeb.

I just think it's funny :)

More on Restraining Orders 

Fool has taken issue with my previous post about why the police should not have a duty to enforce a restraining order over and above the duty to enforce the law generally, which means no liability to individuals for not enforcing the law to their benefit. He makes some good points, but I think ultimately places too much weight on the restraining order as an ex ante preventer of crime that should be given priority in enforcement. If one agrees that the police should not have a duty toward individuals to enforce the law (investigate robberies, arrest trespassers, etc.), the question is whether a restraining order should impose a duty vis-a-vis a person protected by a restraining order. My position is that it should not.

The restraining order is not a court order to protect a person; if this were so, a police guard would be placed on that person at all times. Rather, it creates a sort of individualized law--it becomes a crime for one person to come within a certain distance of another person (or call them on the phone, or anything else spelled out in the order). It is not the police who are ordered; another person is ordered to refrain from certain conduct. enforcement becomes no different than trespass. The only difference is that a restraining order is a form of trespass enforceable in public on conduct that would otherwise not be criminal. Just as the general criminal law is there to protect citizens, why should the restraining order be given primacy and impose a duty on the police?

Fool makes a good point: particularized danger is found beforehand by a court, which makes it more plausible to enforce as soon as it it violated so as to prevent future harm. Indeed this is so, and no one is debating that enforcing restraining orders is a good idea. However, imposing a legal duty on police to enforce restraining orders rather than the law generally creates perverse incentives, as it would encourage ignoring potentially more serious crimes to enforce the restraining order since only the latter could give rise to liability. It is not always the case that restraining orders are "the best opportunity to protect citizens before a crime has occurred." Here's a hypothetical:

Say a department receives two simultaneous calls, and only has one unit in the area. The first is a report of a burglar breaking into a woman's home, and she is screaming. In the second a woman's ex-boyfriend is banging on the door, and she has a restraining order against him. The closest unit can only respond to one call, while another unit will take 20 minutes to respond. Since legal liability will only attach if they fail to take reasonable steps to enforce the restraining order, the unit will always choose to respond to the second case. One can easily see how this lead to odd incentives when other more serious crimes are happening and less-serious sounding restraining order violations are occurring; since liability only attaches if something bad happens in the restraining order cases, those are the ones that will get responses.

The incentive should not be to enforce the law in this lopsided fashion, with restraining orders as the favored crime. If enforcement would look like this, then I think indeed judges may be reluctant to issue restraining orders (as I briefly mentioned before), which would not be a better thing.

My above hypo may seem ridiculous because the tort system would only impose liability for negligent, or even only grossly negligent, police misconduct in failing to respond to crimes. But I still think this is too much of a burden to bear for three reasons: 1) the cost of litigation would encourage settlement, 2) second-guessing of police judgment would impose liability where it doesn't belong, and 3) judgments and settlements are all taxpayer money which would be better spent hiring more police to prevent crime than compensating individuals. These costs are not insignificant.

One may still argue, as Fool does, that this cost serves the important purpose of incentivizing officers and police stations to enforce the law dilligently. The main counterargument is that there is no incentive at all: taxpayers will bear the costs, not police stations, so there is no incentive to reform practices, especially if the agency costs of doing so are high. This has been seen in the context of police brutality, where even multi-million dollar jugments against officers do not produce significant changes because of municipal indemnification. But even assuming that tort liability does encourage the police to respond to calls, does this necessarily produce better law enforcement? If there will be liability for negligently failing to respond, then there is the danger of over-responding to locations where the police may not otherwise go, or at least not respond to with lights and sirens but-for the risk of liability by having their actions second-guessed later. This response to more locations may lengthen a response to a serious situation, which is not a good result. There may also be long term costs in hiring more officers to respond to seemingly worthless calls, which may or may not prevent crimes, but would certainly be financially costly. I do not see a definite benefit from this incentive.

There is also the issue of the slipper slope, which I argued before: Since it is unwise to create liability for some crimes (restraining order violations) but not others, it seems natural that a duty would soon extend to failing to respond to any crime, exacerbating the above problems. Fool also tries to argue that my thinking has a slippery slope of its own--that it will encourage selective enforcement of the law. This is simple to rebut since we are already at the bottom of that slope: there is no duty on the part of the police to enforce any criminal law for an individual. The problems with changing the system are the arguments I make above.

Since this post has already gone on too long, I will end with a brief word about current enforcement mechanisms. Police office discipline and political checks are what drive the system now, without a legal duty to enforce the law for an individual. The same is true for fire fighters. I don't see a rampant problem with arbitrary decisions not to enforce the laws. And, as I argued before, there could still be liability based on other theories, like racial discrimination or personal animus, that do not impose a duty to enforce the laws generally.

Creating police officer liability for failing to enforce the law, no matter how bad the eventual loss, moves too close to having the taxpayers be the insurers of crime victims for my taste. Fool's comments have certainly been interesting, and I hope my response is coherant. Peace.

Quotable Indeed 

My quoted sentence from some dude named Greg was noticed, I see.

Is anything on that site about movies?


Well, Blogger decided that it wanted to delete about 2/3 of my blog template, which rendered my site inoperable for a while. Fortunately, I had an old backup, and am now up and running again.

I hate Blogger.

More on Judicial Appointments 

People should remember that there are a number of issues out there besides abortion to consider when thinking about conservative judicial appointments. After all, most of what the federal courts do is interpret statutes, and plenty of hot social issues go under the radar.

It is not at all certain that judges of particular political persuasions vote in solid blocks on all imporatant issues. For example, Justice Blackmun, the author of Roe v. Wade, was a Nixon appointee generally considered a conservative at that time (at least compared to the Warren Court), and was selected in some part because of his anti-Miranda views. In many of the Court's criminal procedure cases, he was on the same side as Justice Rehnquist. Justice Kennedy, though maybe not the best example, joined the majority for Casey and Lawrence, but is firmly on board with the "conservative wing" on jusiciability issues, like standing and sovereign immunity.

The point is that it is not at all clear that conservative judges on substantive due process issues will also be on board with the other Scalia-Rehnquist-Thomas issues present, though I'll be the first to admit I don't know nearly enough about the voting habits of lower court judges to make any real generalizations about whether "conservative" always means the same jurisprudential bloc. Liberals should be attuned to the entire jurisprudential spectrum--if the Court overturns Roe, isn't it ok if it also overturns Hans v. Louisiana (which would allow citizens to sue states) and finds that the Partial Birth Abortion Act is invalid under the Commerce Clause?

Judicial Appointments 

Much buzz is being generated by Arlen Specter's statements about Bush's judicial nominations, basically that he shouldn't nominate anyone conservative. For example, check out Professor Bainbridge's thoughts here. A friend was also arguing yesterday that Bush doesn't "own the world," and should not, therefore, try to advance his agenda through the courts. After all, he only got 51 percent of the vote.

In my mind, the argument that Bush cannot appoint anyone he wants are rediculous, just as the thought that Kerry could not nominate all liberal judges would have been. It is the President's choice, subject only to confirmation by the Senate, nothing else. Of course, one can (and should) argue that Bush cannot appoint any conservative yahoo who will simply overturn abortion but otherwise be a legal embarassment; there must be a careful consideration of intellectual merit and principles. So, yes, he should appoint more Scalias, if he is lucky enough to find some.

The Senate confirmation hearings will be where the good stuff goes down, especially for Supreme Court nominees, so we will see if the Senators hold themselves to the proper standards of judicial appointments.

Wednesday, November 03, 2004

Bye Bye Punditry 

Now that politics is over for a while, I will probably find it easier to stop blogging politics, which I think will be better for the Earth as a whole. I don't think I was really very good at it.

Anyway, I do have some thoughts on where the Democratic party needs to go, and what this means for the Republicans. Some have postulated that the Dems need to move towards the center in order to cultivate the Southern vote. I think this is wrong; the Dems need to move towards the left. This does not mean that the Michael Moore faction should take over. Rather, part of the challenge will be to take liberal ideas that play well in the cities and speak to the more conservative states/regions in a way that is not insulting or condescending. Going for states rather than national reforms, there is a better chance to show that government social programs can work, that liberal values are not out of touch with mainstream America, and will not give moderate states such a sense that urban elites are trying to impose a value system on them. In short, Dems need to go liberal and go small.

Republicans, on the other hand, have staged a rather major coup on the national scene, and hopefully this will allow a few things: reduction of New Deal era policies in the legislature, judicial passivism in the federal judiciary, fiscal restraint (hopefully Bush, but beyond as well), and a de-federalizing of many issues like abortion. The Republicans should become more moderate, and probably will; the old guard Southern bastions are dying, and issues like gay marriage are largely generational and should moderate. (The Dems, on the other hand, are probably less likely to shed the radical left, which is why I think they should harness it rather than move to the right). If they do so, this could become a complementary force to allow liberal thought to flourish undisturbed in states that choose to have it.

Broad strokes, but the future will certainly be interesting.

Tuesday, November 02, 2004


Cast my ballot early this morning, and I urge everyone out there who read this site (both of you) to vote Dubya. And if Kerry wins, I plan to grumble a little, but will support our new Commander in Chief. I hope neither side does anything (more) that they'll be ashamed of, and that this turns out to be a reasonably clean election.

Monday, November 01, 2004

Duty to Protect 

According to this AP story, the Supreme Court "will decide whether local governments can be sued for failing to enforce restraining orders." The specific case involves sypathetic facts, where a mother allegedly called repeatedly over a five hour period for the police to enforce a restraining order against her estranged husband, who later killed their three daughters. Her suit is asking for $30 million.

The story also says that the Court has previously held that public officials owe no duty to enforce the law to private citizens, by a 6-3 vote. To me, this is the right decision. Barring some other route to liability, there should be no general due process right to have the law enforced on one's behalf by the police. I see a real danger of a slippery slope, and even without the slope, wrong incentives in restraining order cases.

If this case is confined to the restraining order context, where the police are arguably more "on notice" of an affirmative duty to enforce a law, it would seem to create an incentive to not issue restraining orders at all, which would harm the public.

If judges are still inclined to issue orders despite the police burden, then the danger of expanding the duty seems strong. How is the restraining order different from other legal duties that the police generally enforce? The duty to protect people from murders or robberies in progress seems equally as strong as enforcing the restraining order, which does not even necessarily involve violence or immediate harm. The restraining order distinction then seems unlikely to hold, and this doctrine could very easily lead to police duties generally.

Why is this bad? After all, won't only the most egregious or grossly negligent conduct give rise to liability? For any kind of litigation, like ex post evaluations of police conduct, there is the danger of second-guessing dispatcher (if that is the decisionmaker) evaluations of individual situations; it is easy to figure out how three deaths could have been prevented after they occur, but difficult before. The occasional big judgment may be a real cost.

In addition, what kinds of harms give rise to liability? "Easy" prevention of property crimes and an unduly slow response may give rise to liability. And if we only want to attach liability for serious crimes, where is the line?

Some may still think this is not so bad because any liabilty, if confined to "gross negligence," and for serious harms, will still encourage the police to practice due dilligence. However, allowing suits, and burdening the police with litigating the claim, especially if the plaintiff has suffered real damages, can be a substantial cost, ultimately born by the taxpayers.

The ultimate policy that drives my opinion is that police stations should retain the authority to allocate resouces however they choose, without favoring certain crimes or being concerned with litigation costs. There are other checks on the decision; political costs for police chiefs and mayors, public opinion for cooperation, and internal police discipline policies to combat individual officer problems. I also think that liability could arise with purposefully omitting law enforcement based on other constitutional provisions (e.g., equal protection), or animus toward a particular person by an individual officer or dispatcher. However, the theory is different than a generalized due process right to police protection, even from gross negligence, and too much to ponder over right now.

In short, this poor woman should lose her case because the police should not become the insurers of society against criminal losses that are judged preventable after the fact.

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