Sunday, February 29, 2004


I stumbled across the site for a new e-book, available for free download, titled "Fallen: Confessions of a Disbarred Lawyer," by an anonymous author. The dedication reads as follows:
To my father, who did not judge me.
To Debbie, who did not know me.
To my clients, who did not deserve me.

I apologize to you all.
Hey, it's free.

Love Divorce? 

Then check out California Divorce Weblog!

Small Blogs of the World: Unite! 

In a nod to a post I found interesting on economics (actually, a post linking to an article I found interesting), I hope all three readers of this blog will visit Running for the Right at least once.

Saturday, February 28, 2004

Can I Cite Korematsu? 

The Centrist has a good post (linking to Phil Carter's post) about the Court's deference to the miliatary in times of trouble. Here's an excerpt:
As was the case in Bush v. Gore, the conservatives on the court won't be happy with simply ruling for the government while devising precedent more tolerant that Korematsu and Hirabayashi; they'll most likely give the government more than it wants and stand firm behind these cases that have been marked suspect by scholars and historians alike.
Personally, I wouldn't be so hard on the conservative justices. I've been thinking recently about what Korematsu should mean today. In a narrow sense, it is a fairly rational opinion--the military said that certain things needed to be done to win the war, so we did those things. Only since then have we learned that the military lied to the Court, and the justices who thought the Japanese internment was ex ante impermissible have been vindicated by history.

If the Court were to uphold the internment cases, what exactly would they be upholding? Korematsu is objectionable on two separate grounds: government dishonesty, and racial classifications as the sole factor in restraining a people's liberty. In the end, the disfavored status of Korematsu should caution against giving the military carte blanche to do whatever it wants when it is ex ante overinclusive as to race, and should counsel for healthy skepticism when the military offers evidence to support its decisions. Still, we should recognize that Korematsu can stand for a reasonable rule: the protection of the United States from military attack from known enemies is a compelling state interest that can justify drawing racial distinctions (or national origin distinctions). The Court cannot overrule Korematsu without overruling this holding, and to do so would say that the government cannot take into account whether someone is from a Middle Eastern country in investigating whether they belong to a Middle Eastern terrorist organization. This, I believe, is too much.

In the end, I feel that the failures of Korematsu were failures of fact, not of law, and can be upheld if the strict scritiny it promised is applied as fatally as it is in other areas of the law.

Pound on Saturday 

In order to encourage more discussion on Ezra Pound, one of the greatests artists of the 20th century, I've decided to start some sort of regular Saturday posts about his life, work, and the controversy surrounding him. So, what better place to start than with the most controversial of his exploits, the Rome radio broadcasts. MAPS has posted the texts of two of the broacasts here that contain much of the basis for charging Pound with antisemitism. Also, a blurb here about Pound's facism, and another blurb here about how Pound clung to the "crudest racist stereotype[]" to build his economic mythology.

Brown Today 

David Crary writes for the AP here about segregation, schools, and diversity today, looking at two schools in the Philadelphia area. I think this shows that the issue is very complicated, and the piece is definitely worth a read.

Building a Nation 

I find the crafting of the Iraqi constitution a fascinating event--the birth of a new nation that will stand or fall based on its faith in the rule of law laid down in these next few years. The AP reports here on recent conflicts over the wording. The major snags seem to be the role of Islamic law versus secular law as the main philosophy of the document, and over providing rights for women.

Personally, I feel the role of Islamic law in the document is not so much a problem; if the worry is that it may breed an anti-U.S. state, then I think this will happen regardless of what the constitution says. The minds of the leaders is what counts. The most important role is the apportioning of powers between the three main ethnic groups in Iraq: the Shiites, Sunni, and Kurds. A problem with Saddam's rule was the oppression of the non-Sunni groups, and the U.S. should make sure, above all else, that this does not happen again, especially with the overwhelming Shiite majority trying to exert its influence after years of oppression.

This is how history will remember the second Iraq war: on the basis of the state that follows. Exciting times.

Friday, February 27, 2004

Still Smokin' 

The AP reports, via Drudge, that a garbage truck was stopped in Arizona and found to contain over two tons of marijuana. I guess Snoop Dogg did a little spring cleaning.

Holy Crap 

Apparently this is a fairly popular site, but in case you haven't seen it, go immediately to WIL WHEATON dot NET. Yep. The guy from Star Trek: TNG.

Kerry Draws a Line in the Sand 

I was first drawn to the headline "Kerry Slams Bush on Terrorism" because it stated the Bush had done "too little" in the war on terror. CNN reports here. Then I read this quote from Kerry: "Iraq is in disarray with American troops still bogged down with no exit in sight." The line is drawn: if the troops come home in June, then Kerry loses (assuming he gets the nod from the Dems). My prediction.

But then again I'm not in the political pundit business.

Gay Marriage and Deliberative Democracy 

I've been a little troubled by the current debate over same-sex marriage in that the dominant voices seem to be advocating polar opposite positions. I consider myself fairly middle-of-the-road on the issue; I support gay marriage, would vote for it if it were on the ballot, but can see why civil unions would be preferable for some, and oppose judicially created unions of any kind (though I can see extensions of common law protections to domestic partnerships, but this gets a little far afield). I've been sensitive to the fact that I am an outsider to the issue: I am taking a position on an issue that may deny a group (which I do not belong to) a privilege they really want, and thus I feel like a heel. Still, I see more of a problem with the relevant players treating this as a zero-sum game.

Under a deliberative democracy theory, the goal is to make a decision based on impartiality, rationality, and knowledge. The concern from both sides may be that they will be excluded from the decision-making process--the "traditionalists" by the activist judges, and the gay-rights advocates by the majority--so each is appealing to the branches of government that will rule in their favor. The goal should be to include all relevant voices, and reach a legitimate and fair conclusion that becomes law.

This is why I feel that the Civil Union "compromise" would be a perfectly legitimate, and desirable, solution if a legislature (or the people) passed it. Same-sex marriage would of course be fine, but I just don't see the consensus for it now. It takes into account the desire of same-sex couples to have the privileges and immunities of marriage, while at the same time respecting a societal tradition that does have important religious moorings for many people. What's more, we would be using a decision making process that does not require a zero-sum outcome. Not enough people are talking about the issue this way, to the detriment of the country. It looks like we will either end up with judicially created same-sex marriage, or an embarrassing DOMA.

Saudis to Jews: Stay Out 

The AP Reports that Saudi Arabia will loosen its visa requirements to encourage more visitors to the country, with the following restriction:
The Web site, promoting a new Saudi program to offer tourist visas to encourage more foreign visitors, lists four groups not entitled to tourist visas, including "Jewish People."
Personally, I wish we could kick Saudi Arabia's ass in general since it doesn't exactly have a model government, and there are many rights I would like to see Saudis have. That said, I don't mind this restriction the same way I don't really mind that women cannot serve on American submarines in the Navy: the real harm may outweigh the abstract principle being vindicated. Yes, it would be nice if Saudi Arabia allowed Jews into the country, and it would be nice if the U.S. could facilitate this, but I think S.A. has a pretty strong interest in preventing the internal strife that Jewish tourism would cause. It may also be better for the tourists in areas where there is anti-Jewish sentiment, which I suspect is a large area. Some of this may play on my stereotypical perceptions of the Arab world, but until I see something that counters the media image (which is certainly anti-Jewish and anti-Israel) I'm going to say this policy is probably wise given the realities of the situation. Perhaps some people who have been to the area know more and can enlighten me.

Playing Politics 

John Kerry and John Edwards had this to say about Bush's endorsement of a constitutional amendment forbidding same-sex marriage:
"He's doing this because he's in (political) trouble. . . . He's playing politics with the Constitution of the United States," said Kerry. "This is clearly nothing but politics," said Edwards.
I find it odd that a bunch of politicians are accusing another politician of "playing politics," especially over something so politicized as same-sex marriage: the question is about the proper role of government at the federal and state level, and about the proper role of the judiciary, in making decisions about marriage. Are all decisions that purport to enforce the will of the people (which is what some polls show) merely "playing politics?" I believe Kerry and Edwards have both taken a position on same-sex marriage and the amendment, so what do we call their positions?

Not What You Call Homework 

What a nut job:If the school insists on schoolboy type punishment (i.e., suspension), they should have sentenced him to 20 minutes in the corner, a dunce hat on his crotch. What a loon.

Thursday, February 26, 2004

No Post Here 

Worse than writing a book about writer's block, or making a film about not being able to write a screenplay, is writing a blog post about having nothing to write about. It's not that there is nothing going on, it's just that today it seems like its all been done already. Chris as usual has gay marriage covered, so even though it is probably the hottest news around, I don't feel the need to blog it. The recent SCOTUS cases seem pretty clear cut: the U.S. hates religion, the death penalty sucks, and ignoring signitories to treaties when interpreting international law is once again popular. The horrible racial slur "white" is still being used in our otherwise civilized society (in other news, Haiti is a screwed up country).

Yep. Nothing happening today.

Wednesday, February 25, 2004

My Life for the Next Year 

Just do a Google search for 'UCLA Law Review CME' and hit 'I'm Feeling Lucky.'

Well, I thought it was funny.

Not Hatin' on Scalia 

I like Justice Scalia, but I'll let the Angry Clam sing his praises this time.

Amendment Difficulties 

Fox News reports that the political issue of gay marriage is complicated indeed, with the issue creating interesting splits straddling party lines. I think this just illustrates a good point to remember: amending the constitution is hard. These are the obstacles facing a federal DOMA:
  1. Two thirds of both houses of congress must propose the amendment before it goes to the states for ratification (this ignores the "convention" method, which I know nothing about).
  2. Article V of the Constitution says nothing about the President being involved in the process.
  3. Three-fourths of the states (37?) need to ratify the amendment.
Right now, the first point looks like a major stumbling block for a marriage amendment. Just to add more reassurance, a search at House.gov reveals several other proposed amendments kicking around in Congress, none of which look even close to passing. These include hot topics such as abortion (both sides), abolishing the income tax, banning flag desecration, school prayer, and more.

Let's not forget that when we are faced with possibly enshrining an exclusionary definition of marriage in the federal constitution, the founding fathers already put a pretty good safeguard in place.

Dang, I Missed Grey Tuesday! 

Just going to show that I need to read Lessig's Blog more often, a group organized a mass online civil disobedience campaign to protect draconian copyright law. See GreyTuesday.org for more. The story: DJ Danger Mouse remixed Jay-Z's Black Album and The Beatles' White Album to form The Grey Album. EMI apparently was not ammused. In response to the corporate assault, Grey Tuesday was organized: websites hosted copies of The Grey Album for free download in protest. Apparently it was a great success.

The main issue hear is the right to sample other artists' music to create new expression, something any fan of hip-hop, techno, or other DJ-spun musical style is familiar with. Right now, US law allows a compulsory license to cover a song, but not to remix it. Being the copyright minimalist that I am, I am fully in favor of promoting creation in this area, and I'm sad I found out about this so late. I certainly favor mass action to prove three essential points necessary to reforming copyright: the futility of fighting the technology (especially internet dissemination), creation of works without the full economic incentive of copyright, and the overall public good generated by such actions.

Here's to DJ Danger Mouse--may he be fixed in a tangible medium of expression for many years to come.

Jurisdiction Stripping 

To challenge Eugene Volokh, and to show I've been paying attention in Fed Courts class, Congress may not be able to strip all federal court jurisdiction for a paricular subject matter, even though some text in Article III could be read that way. So, for example, Congress could not permissibly strip all federal court jurisdiction in Defense of Marriage Act cases, including taking away the jurisdiction of the Supreme Court.

Assume for the sake of argument that Congress could strip the lower federal courts of their judisdiction to hear DOMA cases. Since Congress is not required to create lower courts in the first place, it should be able to strip any or all jurisdiction. Assume also that state courts can still hear a constitutional challenge to DOMA cases. The question is whether the Supreme Court's appellate jurisdiction can be stripped in this circumstance. Even though Article III says that the Court's appellate jurisdiction is subject to "such Exceptions, and under such Regulations as the Congress shall make," the question is sticky.

Scholar Henry Hart, co-founder of a really really thick casebook, argues that stripping jurisdiction this way would take away the essential role of the Supreme Court in our federal government, and deprive a federal forum for constitutional rights. Intutively, this makes sense: the holding in Marbury v. Madison established the Supreme Court as the final interpreter of the Constitution in our system, and stripping it of jurisdiction over a constitutional matter would conflict with this role, and leave the Court as an optional forum for interpreting the Constitution.

Outside Article III, the structure of the Constitution contemplates three coequal branches of government, and being able to strip the entire federal judiciary of jurisdiction to hear a constitutional issue certainly seems repugnant to that structure. If we believe in the current role of the Court as a countermajoritarian check, and the Article III safeguards (life tenure, salary protection) are a necessary part of that, then it is plausible that some federal court jurisdiction is required in federal constitutional cases.

The point has never been squarely held, and if Congress presses the point, it is not so clear that the judiciary would take it lightly. Rehnquist in particular seems to like the current role of the Court as a central figure in the US government. He already flip-flopped in US v. Dickerson on whether Miranda was a constitutional case, to my mind indicating that he didn't take kindly the Congress tried to overrule the Court's holding, even though Rehnquist himself described the Miranda rights as mere prophylactics.

The stakes are much greater than just a few states upholding DOMAs. I would be unconfortable with a state being the last word on a federal issue, even if many are likely to interpret it the way I feel it should be interpreted. Uniformity in constitutional law, and ensuring Article III safeguards are important considerations. I agree with Volokh that a carefully crafted amendment would be a more effective solution, but jurisdiction stripping would be much easier and controversial national decisions and Full Faith and Credit issues.

[UPDATE: Sasha Volokh weighs in with Hart's point, actually citing cases to boot. Just remember folks: you heard it here first!]

The Great Sport of Chutes and Ladders 

If there is any feature that distinguishes the set of all sports from the broader scope of all games and hobbies, it must be this: success is determined principly by physically expressed superiority. By "physically expressed superiority" I have in mind natural advantages of body size and strength, and acquired advantages of honed skill or even intelligent use of the body. So unlike Will Baude (who rides the fence on this one) I would certainly not consider Chess a sport. Among the other borderline examples he mentions (archery, bowling, horseback riding, and sailing) all but sailing are surely sports, but only when they are engaged competitively--like sailing, skating, running, and swimming--when "success" is possibe. If I knew what it takes to sail, I might be able to say whether success in competitive sailing depends sufficiently on physically expressed superiority.

If chess is a sport, then so must be Scrabble, Trivial Pursuit, and the entire class of games in which success depends principly on intellectually expressed superiority. Now I don't doubt that my definition might include some awkward activities (horse shoes, perhaps remote control racing), but it seems to capture both the intuitive meaning of "sport" and to exclude just the right kinds of games. Perhaps Ed Cohn agrees.

I'm Glad They Never Taught Me This in School 

The Missouri Court of Appeals upheld the firing of an eighth-grade teacher for making racial remarks in class. AP story here. According to the story, she "told her eighth-grade class she opposed interracial marriage and believed such couples should be "fixed" to prevent them from having children." The firing was challenged on First Amendment grounds, claiming (according to the news report) that it was a private opinion outside the lesson plan. The court (again according to the story) ruled that the First Amendment applies only to public concerns.

Doing my best Volokh impression, some of these claims in the news report seem off, but the firing sounds legal. Libel law is the area where the private/public concern distinction has traction, but this seems to fall outside of that area. It is also not clear that this is not a public concern: it is certainly a personal opinion, but it may be a public matter--the teacher thinks certain relationships should not occur, and perhaps this should be reflected through laws.

Still, a school should be able to restrict certain types of speech that could be disruptive or hurtful to students and faculty. Perhaps some controversial speech could be tolerated (e.g., a teacher voicing a strong pro-life viewpoint), but even fairly mainstream speech could cause enough of a disruption to cause the school to take action. This particular statement also seems to fall under a "hostile environment" label, where students or others could feel harassed because of their race (apparently there were two mixed-race children in the class), and where there is civil liability, there is probably no protection for the speech.

Tuesday, February 24, 2004

Humanizing Gay Love 

A few days ago, Kevin Drum had a question about gay marriage: I don't think live and let live will get the job done. It doesn't overcome the basic thrust against gay marriage: the deeply engrained assumption that it's not really marriage if it's same sex. Presenting gay marriage as harmless cannot challenge an impetus that itself has virtually no consequentialist origin. What fence-sitters should hear more of are accounts that emphasize the love and livelihood of the bond, regardless of its gender composition, so they might see that everything beautful and valuable in traditional marriage can exist equally in same sex unions. They need to read more stuff like these emails to Andrew Sullivan:The solution is to humanize homosexual love. In the long run, it's the only way.

The Meaning of Marriage 

Matt writes below: and then writes To correct this apparent inconsistency, I think you have to abandon or seriously revise the curious weight you place in the semantic reach of a word by virtue of its history. Justice isn't about dictionaries. And a tradition of persecution and intolerance seems to be an odd basis on which to legitimate the majority's perogative to tamper with traditional semantics, but to illegitimate the constitutional equal protection of minorities.

You should definitely go read everything Andrew Sullivan has posted today. Everyone should. Then consider, honestly, what it feels like to be gay on a day like this.

What a Shame 

I'd sooner understand quatam mechanics than my reasons for following Instapundit's link to Claton Cramer's blog, where one will find all sorts of loathsomely insinuated comparisons between homosexuals and pedophiles. To be fair, I suppose the truly bigoted mentality, that sees little but sickening immorality in homosexuals, would fail to appreciate, or at least mention, the fact that pedophilia is nonconsensual and directly damaging.

A Better Person Than I 

Amanda Butler, blogging over at Crescat is joining the peace corps to teach english in Kazakhstan. I'll always admire people willing to make this commitment, and know that I'll never have the courage myself. I wish her well.

[UPDATE: I don't know if my link to the post is working. Oh well, you should be reading Crescat Sententia regularly anyway.]

Bush Off the Fence 

President Bush has finally said he will support a constitutional ban on same-sex marriage. Chris Geidner always has better coverage of this issue than I do. For what it's worth, the President has made one statement I totally agree with, and another two that I disagree with. I agree with, but can only find an indirect quote for, this statement:
Marriage cannot be severed from its cultural and moral roots, Bush said, urging Congress to approve such an amendment.
See AP report. This goes to my objection of the Massachusetts court mandating that unions between same-sex couples bear the name "marriage." I don't think the term can be separated from its traditional, cultural, and religious moorings, so it should not be redefined by constitutional interpretation.

I disagree with the issue of "clarity" that is now coming up:
"Unless action is taken, we can expect more arbitrary court decisions, more litigation, more defiance of the law by local officials, all of which adds to uncertainty," he said.
If "certainty" means a consistent national policy, then I think this is garbage. States should certainly be free to define a traditionally state-dominated institution. I'm a little bit torn over the use of the term "arbitrary" here, for while I believe that the decisions are calculated and deliberate, I also believe they are logically flawed, and I am waiting to see what hoops courts jump through to continue banning polygamy and incest restrictions in light of their same-sex decision language. And I also disagree with this paraphrase:
The states should be left free to construct institutions as alternatives to marriages, he said, but should not be permitted to redefine marriage itself.
Why shouldn't a state be able to define marriage? More specifically, why can't the people decide what their traditional institution will contain?

Interestingly, the Washington Post and MSNBC do not include the statement I agree with, only the AP story has it. Considering it is a paraphrase, I would be interested in seeing the direct quote to confirm it.

[UPDATE: The direct quote from Bush's speech reads: "Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society." A little confusing, but I still support this view as to the terminology assigned to unions, though perhaps Bush is using it in a larger sense than I would. Thanks to Fox News for the raw data.]

Monday, February 23, 2004

Armchair Diplomacy 

The AP with the most obvious headline ever: "Officials Say Aristide Should Have Pursued Peace."

Revisiting Eldred 

Interesing post here about the functional perpetuity of a 95 year copyright. Lessig blogs it here.

Wasn't that what Justice Breyer's dissent was all about?

The Next Big Thing in Search Engines 

Interesting article from Technology Review about the future of search engine technology. I haven't had time to read the whole thing, but what I did read was a fascinating look at the search world and the (bafflingly) big business it generates. I think it is undisputed that search engines like Google are indispensable to us, and I want to ensure the financial incentive to have them (unless the costs can be totally internalized somehow, but that's another ball of wax).

I found two things refreshing about this article. First, there was no mention of copyright or patent as a means of entrenching current technology and its "derivatives." The article does mention that Google holds some algorithm patents, but there is no discussion of how this could affect future engines. In other words, IP law is not being used offensively to stifle innovation--a refreshing development, and one that may change if Microsoft ever gains a foothold.

Second, this innovation-friendly use of the law is reflected in the attitudes of the major players. Google director of technology Craig Silverstein remarks: "[w]e hope the next breakthrough comes from Google—but who knows?"” The winner: the internet searching public (and right now Google, because they make the best product).

I just like to congratulate good capitalism and good IP policy when I see it.

Patrons of the Absurd 

A friend of mine just started his own blog, Patrons of the Absurd, promising to bring news of the absurd wherever it happens. The purveyor posts under the moniker of Cosimo de Medici, an dominating figure in 15th century Italian politics. Brings me back to my days of studying Ezra Pound and his series of Cantos dealing with the exploits of Sigismondo Malatesta. Ah, memories...

I'm not sure how I feel about his listing Ichiblog among the absurd. Oh well, any links is good links, I always say.

I guess I want to play too 

What Federal Rule am I?I had a feeling I would be Rule 11, which is not particularly flattering because my utility is under-recognized, and people use me in really pissant ways to annoy everyone involved. But based on my nonchalant anwers to the quiz questions, I question its logic.

Interstate Commerce? 

The AP reports here that Congress is considering making it a seperate federal crime to kill an unborn baby when a pregnant woman is killed. As the article points out, many states already have similar laws, and I don't object to the substance of the bill itself. But this brings up the same issue that the partial birth abortion bill did: where does Congress's authority to enact such a law come from?

The partial-birth ban purported to be enacted under Congress's commerce power, but this seems just as attenuated as the Violence Against Women Act struck down in U.S. v. Morrison or the gun regulation in U.S. v. Lopez. I feel it is bad policy to enace nation-wide criminal laws that completely overlap with state laws (or where a state law should potentially govern) where no substantial federal issue is involved, such as ensuring a fair trial for federal officers. I haven't really heard this point debated much about the partial-birth ban, nor do I expect to hear commerce clause challenges for this bill. For exceptions, see here and statements of Rep. Ron Paul here.

This seems to be a point where conservatives abandon the states' rights approach to the commerce clause, and liberals are affraid to take it up when it may help then (and be better for the country in my opinion). But what else is new.

Protesting Democracy 

This NY Times article describes the planned protests at the upcoming GOP convention in New York. Some plann a peaceful encounter to encourage dialogue and raise awareness. But some clearly want more. Although the Rev. Peter Laarman doesn't wish it himself, he adds this:
"I am not in the business of predictions, but it is my guess a very significant number of people from New York and from around the world are going to take the position that the convention should be shut down or disrupted. There is a good likelihood of that."
This was the same kind of thing that happened in Berkeley during my undergraduate years. A group of left-wing folks would use the right to speak to stifle another exercise of that right. It is a shame that some feel that the freedom of speech means stopping other people from speaking, especially when the speech is not at all controversial: it is political speech advocating a candidate for president.

I'm not in the business of predictions either, but I predict that anyone trying to "shut down" the convention will just end up looking silly. All the best to those who just wish to be heard.

[UPDATE: Glenn Reynolds links a story about the DNC, where the Dems have relegated free speech to a special zone located in a parking lot.]

Which Rule Are You? 

Via a Volokh Conspirator, an amazing quiz: which Federal Rule of Civil Procedure are You? My results:


You are Rule 8, the most laid back of all the
Federal Rules of Civil Procedure. While your
forefather in the Federal Rules may have been a
stickler for details and particularity, you
have clearly rebelled by being pleasant and
easy-going. Rule 8 only requires that a
plaintiff provide a short and plain statement
of a claim on which a court can grant relief.
While there is much to be lauded in your
approach, your good nature sometimes gets you
in trouble, and you often have to rely on your
good friend, Rule 56, to bail you out.

Which Federal Rule of Civil Procedure Are You?
brought to you by Quizilla
I particularly liked the last choice for the last question.

Sunday, February 22, 2004

More on IDs and the 4th 

The Centrist chimed in to my post below about the Fourth Amendment and demanding ID:I haven't pored over the briefs, but I believe the case is about the arrest (and its probable cause), not any subsequent searches incident to that arrest.

The point about obstruction is interesting--and I wish I knew more crim pro on this point--but surely there must be constitutional limits to a state's definition of "obstruction." For instance, suppose a statute said "Any refusal to permit an officer to enter one's house when that officer has reasonable suspicion that a crime is being committed therein, shall constitute obstruction of justice." Any failure to consent would provide the officer probable cause to force entry because he knows the obstruction statute has just been violated. Thus, this hypothetical statute would effectively fabricate probable cause in most non-consent cases, which is certainly an impermissible burden on the Fourth Amendment rights.

Even so, it doesn't follow that demanding ID is unconstitutional, but I think it's constitutionality will have to depend on the reasonableness of the arrest given the officer's knowledge of the alleged violent offense, not on whether refusal to show ID is a predicate crime. The Court may be quite willing to characterize a demand for ID as the sort of minimal intrusion with sufficient law enforcement importance to justify a lower than probable cause standard.

Ralph Jumps In 

Ralph Nader, on national television (NBC), was just forced to to watch the online video at http://www.ralphdontrun.net. Yeah, that's Ralph Don't Run, and it says just that, passionately. Ouch. I can't say his response (something like "it's undemocratic for them to prevent candidates from running") was even remotely persuasive. The right doesn't appear to object:But hey, perhaps Nader's disregard of things like but-for causation and pesky consequences, and his preference for honorable democratic principles, makes him the unelectable sort of honest politician (as if there were an electable kind).

Saturday, February 21, 2004

The Case Against Daubert 

The AP reports that a study released in 1998 linking the measels-mumps-rubella vaccine to autism should not have been released due to a "fatal conflict of interest" with a funding source. The story also notes that "the paper has since been discredited on scientific grounds," though retractions of major scare headlines do not undo the harm, and are rarely as publicized. Some parents have refused vaccinations for their children based on fears such as this one.

I find this especially troubling in the world of litigation. Since the holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), trial judges have had greater discretion in allowing expert testimony based on new and unproven studies. This case abandoned the requirement that science be "generally accepted in the field" before being admissible. Intuitively, it seems wrong to potentially allow this kind of untested evidence.

On the other hand, some argue that Daubert is also keeping too much evidence out of court, thus allowing defendants to escape liability for dangerous products. This too seems like an argument for a less-discretionary standard: plaintiffs may not be able to use sketchy science, but they can be assured of using "generally accepted" evidence. Sometimes justice requires less flexibility.

Friday, February 20, 2004

Love ERISA? 

For those who can't get enough of retirement and health plans, there's ERISABLOG.

What About All Those Marriages? 

I've been posting entirely too much about same-sex marriage, but hey, its hot news. So what should happen to all the same-sex couples married in California if the California Supreme Court rules that the state must allow same-sex marriages? My opinion, certainly debatable, is that all these marriages should be declared void, and the couples must start over. After all, they were married against the law of the state, and the rule of law should prevail, even if the end position is vindicated. I see this as analogous to freeing a person jailed for violating a law later declared unconstitutional, but not allowing them to sue for false imprisonment.

To Be Secure in their IDs 

Can you be arrested for failing to show ID when a cop demands it? What if the officer was told by phone that you were hitting your daughter, but has no probable cause? The Supreme Court will decide such a question this term. Since the infamous Terry v. Ohio, 392 U.S. 1 (1968), Fourth Amendment restrains on police investigations have substantially weakened. Officers may stop and question people with less than probable cause ("reasonable suspicion" usually required), and may under certain circumstances frisk them for weapons. This "Terry Stop" power in some measure conflicts with the Court's recurrent assurances that people have the right to ignore police questioning and be on their way, provided the officer has no grounds to conduct a reasonable search or detention.

That conflict is exploited by a case brought by Dudley Hiibel challenging his arrest for refusing to produce ID when Terry-stopped by police who were responding to a phone call reporting violence between Hiibel and his daughter. You can learn everything about the case here, and even watch the police video of the encounter here.

My first impression is that, at least in this case, failure to produce ID cannot alone elevate reasonable suspicion to probable cause. There is no relationship between Hiibel's failure to produce ID, and the likelihood that he in fact struck his daughter. His arrest appeared to be without probable cause and thus in violation of the Fourth Amendment. But the Court, of course, will be largely concerned with the extent to which ID checks will support police investigations. Via radio, ID checks can reveal criminal records and turn up outstanding warrants, so I suspect the Court would only rule for Hiibel on very narrow grounds. Perhaps I'll come back to this case after a weekend of Criminal Procedure review.


Thanks to Matt for offering this En Banc refugee shelter until a new and improved group blog rises from the ashes.

There's little to add after my former co-bloggers voiced their surprise at En Banc's sudden death, but I might mention that over at Crooked Timber, Micah's note that "[t]he members of that blog had their differences" should be amended to "five En Bancers were having a lovely time, but Unlearned Hand had his differences." Although I fault Unlearned Hand for failing to negotiate leaving the URL with us, I do look forward to developing plans with Chris Geidner, Jeremy Blachman, and PG to regroup. More news on that as it appears.

By the way, while we consider whether to invite other bloggers, feel free to express your interest in blogging with us by emailing me: dmorgan2005 -at- lawnet.ucla.edu.

From San Francisco... 

Judge Ronald Evans Quidachay denied to issue a preliminary injunction against San Francisco issuing marriage licenses to same-sex couples today. See AP story here. The article describes its rational like so:
"If the court has to weigh rights here, on the one hand you are talking about voting rights, and on the other you are talking about equal rights," Quidachay said.
I can see how some people would agree with this characterization (personally I do not), but I think it is particularly disingenuous for the judge to give this as his legal reason. Can we really distill the rule of law down to simple "voting rights"? If one person is denied the right to vote in an election where they are eligible, then their voting right has been violated, but once a law is enacted this wording is no longer apt. It is the law. This makes statutes passed by popular election sound like an opinion voiced by the people that officials may permissibly disregard. I find this view of statutes troubling.

Besides the terminology issue, the above language seems to lay out a heirarchy of rights: "equal rights" trump mere "voting rights." This seems to indirectly confront an issue of a who is the proper decision maker: the legislatures (or here, the people through direct democracy) or the judiciary (the arbiters of countermajoritarian rights). But there is another wrinkle here: the rights determination was made by an executive, opening up the possibility that there are other forums for determining rights. The statute itself could be the people's interpretation of the constitution: denying same-sex couples marriage licenses does not violate the equal protection clause. If the people have expressed their own interpretation of the state constitution in the marriage context, why is this a mere "voting right" and the executive's determination an "equal right"?

I buy the reason that allowing the city to continue to issue marriage licenses may not cause "irreperable harm," but casting the issue in the above terms seems odd to me.

Welcome Nick 

Nick Morgan, former En Bancer, will be blogging here until he gets tired of me and leaves. And there was much rejoicing.

Thursday, February 19, 2004

Japan is Not America 

In one of the few articles to use the term "lion poop," an interesting story from Mainichi Shimbun.

McCorvey v. Hill

The woman formerly known as Jane Roe has filed a suit to reconsider Roe v. Wade. See AP story here. The district court dismissed the case, but the Fifth Circuit agreed to hear an appeal.

I don't know if a case can be reconsidered at the request of a litigant after a final judgment (perhaps someone with more knowledge of the rules of appellate procedure can fill me in). If this is a new challenge, then it looks like it fails for lack of standing. There doesn't appear to be standing because Norma McCorvey probably cannot allege any particularized injury, other than the fact that abortions occur in the country--an injury suffered equally by all. A favorable decision will also not ban abortions; the states would be free to enact or not enact abortion bans, but that all states (particularly Texas) would do so is entirely speculative. Unless the standing jusiprudence of the Rehnquist court do not apply here, I do not understand how this case is being heard.

Novel idea though...

[UPDATE: Ok, my standing analysis was unnecessary for this particular case, because apparently McCorvey was trying to reopen her original case under FRCP 60(b), which allows reopening of a case if there is new evidence, excusable neglect, fraud, etc. The case was simply dismissed because McCorvey could have discovered her "new evidence" well before 2003. Here is a relevant excerpt:
Based on the Court's review of McCorvey's motion and supporting documentation, and taking into account the facts of this case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to other parties, the Court finds that McCorvey's Rule 60(b) motion, thirty years after the fact, was not made within a reasonable time.
McCorvey v. Hill, No. 3:03-CV-1340-N, 2003 U.S. Dist. LEXIS 12986, at *11-12.

And apparently this is all old news (the original lawsuit being dismised in June, 2003. I'm the last to know about everything.]

More on the Executive Decision

As I previously (and inadequately) opined, people should be at least a little troubled by the mayor of San Francisco's executive decision to interpret the state's constitution as it challenges the courts' role as THE countermajoritarian institution. Volokh weighed in, saying that the move is legitimate in light of a silent judiciary, a vague constitutional command, and a reasonable legal argument that denying same-sex couples marriage licenses is impermissible discrimination.

Pete the Centrist (welcome back to the blogosphere, by the way) has a slightly different response: if the law is unjust, then stop issuing marriage licenses all together. This is what is done for the criminal law--the law is simply struck down as unconstitutional; the interpreter does not get to make new (and drastically more inclusive) substantive law.

File Swapper Fights Back

CNET News reports that one of the individuals sued in the latest round of RIAA lawsuits has filed a countersuit accusing the record companies of racketeering. She contends that the companies are using extortion tactics by bringing a lawsuit and basically forcing a settlement. The rationale is that defendants are intimidated by the threat of litigation and do not defend themselves.

Glenn Reynolds thinks she might have a case. I am more skeptical, however. As much as I disagree with the RIAA's tactics and copyright in this area generally, file sharing is against the law. The lawsuits are good-faith claims brought under the copyright code to collect damages, and more importantly for the plaintiffs, to deter file sharing. No one is forced to settle, and people do so both because they are probably liable, and because it is far cheaper than litigating the claim, a criticism that could be made about the tort system generally. If this is extortion, then why wouldn't this rationale apply to, for example, class-action lawsuit for product liability? The goals are the same--deter illegal behavior, and collect damages--and even if some of the lawsuits are harmful, the remedy is to change the law, not deter plaintiffs with a legitimate right from exercising it.

I agree this is novel to attack the right through the remedy this way, but the harms of it succeeding would outweigh the benefits.

Guilt by Association

Mel Gibson's father apparently made some inflamatory remarks recently, denying the holocaust happened and saying that Jews are plotting to take over the world. Story .here. What struck me was how quickly this rant attaches to Mel. Here is a quote: "Some critics say the movie blames Jews for the death of Christ and will provoke anti-Semitism, and they question why Mel Gibson hasn't denounced his father's views."

I think Mel Gibson has done plenty to address concerns that he might be anti-semetic, that his film is anti-semetic, and that he shares the views of his father. Why do we put such an affirmative duty on him to denounce statements of others, which he has already denounced in the past, lest these statements be attributed to him? At this point, it is pretty clear that nothing will satisfy his critics, and this new attack sounds particularly unfair. I'm sure Mel will be asked about his fathers statements in the near future, and will surely be heard eventually on the issue. He shouldn't have an affirmative obligation to denounce all statements made by others.

Wednesday, February 18, 2004

More on Civil Unions

Howard Bashman has all the good links, so I'm surprised if anone is reading my blog :)

Anyway, here is an interesting article on civil unions that I pretty much agree with, only written better than I could have.

More Hatin' on Scalia

As I was visiting How Appealing, I found this link to an article in the San Diego Union-Tribune. Lionel Van Deerlin takes a few stabs at Justice Scalia for his views on constitutional interpretation, including this line concerning Brown v. Board of Education:
[T]he Warren court, in a conclusion from which Justice Scalia almost certainly would have dissented, found separate schools "inherently unequal."
I doubt Scalia himself made any such statement, or else Mr. Van Deerlin would certainly have said so. I also doubt the certainty of his conclusion about how Justice Scalia would have voted, and even if he would have voted this way the author does nothing to explain why. In my opinion, the author used an oversimplified view of Scalia's views to slam him through a position he may not even hold (and if he does, has a pretty good reason for).

In the broader scheme of things, I dislike when people hold up Brown v. Board as the Marbury v. Madison of activist decisions as if it completely justifies every substantive due process and equal protection issue ever to come before the Court with any dissent being called an endorsement of racial segregation. The Constitution deserves better than this.

One Acre of Prime Moon Real Estate

Maybe I'm the last one in the world to know about this, but apparently some outfit is selling land on the moon. I know almost nothing about space law other than the fact that it is totally awesome. This does make sense in at least one regard though: providing private financial incentive for moon exploration. But since current treaties (at least according to this site) do not permit governments to exploit the moon, it may be difficult to resolve disputes arising on the moon between private entities. Obviously space law is the way of the future.

Monday, February 16, 2004

Bit o' Election Trivia

From the election of 1828 (from BBC News):
John Quincy Adams was nicknamed "The Pimp" by the campaign of his opponent General Andrew Jackson, based on a rumour that he had once coerced a young woman into an affair with a Russian nobleman when he had been American ambassador to Russia.
JQA ended up losing. Today, the fight would probably be over which candidate could name himself "The Pimp," and thus assure victory.

Linux for iPod

An ambitious group of open source developers is trying to get a Linux-like system to work on Apple's iPod. Website here. Right now it looks to be of poor quality, but getting better. Interesting, and could possibly open up doors for more features in the future.

[UPDATE: More iPod hacks from CNN.]

Executive Decisons

Via Lessig's Blog, I found this statement from the Mayor of San Francisco regarding his decison to defy state law and instead enforce his interpretation the state constitution regarding same-sex marriage:
"A little more than a month ago I took the oath of office here at City Hall and swore to uphold California’s Constitution which clearly outlaws all forms of discrimination,” said Newsom. “Denying basic rights to members of our community will not be tolerated.”
This raises some interesting issues: should an executive be able to offer a difinitive interpretation of a constitution? This would be a much more interesting question at the federal level where "seperation of powers" and "judicial review" are more clearly entrenched, but I think the state level raises sufficiently similar issues. This seems to flout the usually liberal stance on government decision making: for civil liberties issues, the legitimacy of courts overruling the other branches comes from the idea that courts are in a better position to determine rights, and provides a non-majoritarian check against infringement of those rights. By its very nature this argument implies that the other brances are not coequal interpreters of constitutional rights, and thus the San Francisco mayor would have no authority to make this constitutional decision. (Again, I make this argument in general, realizing that some notions about judicial review and separation of powers that operate at the federal level may not operate the same at the state level.)

I've made a very simplistic argument, and a full discussion would require a lot more space, so I know there are several arguments that can be made against it. However, the crux is that an executive has acted contrary to a state legislature and a silent judiciary, and this should be at least a little troubling to those who have advocated a special role for the judiciary regarding constitutional interpretation and civil liberties.

More on Federal Same-Sex Marriage Benefits

In an earlier post, I assumed that even if a state allows same-sex "marriage" instead of a "civil union" it would not allow federal benefits, such as filing a joint tax return. Doing a little research, this looks correct--A Washington Post article from December 21, 2003 points out that "[s]tanding in the way is the Defense of Marriage Act, a law passed by Congress and signed by President Clinton in 1996. It defines marriage for the purposes of federal law as 'a legal union between one man and one woman as husband and wife.'" So it looks like a difference in terminology for the union of same-sex couples would not make a difference at the federal level.

Sunday, February 15, 2004

Man, Republicans can be Jerks Sometimes

I don't like it when people mock my political party, but sometimes some of our members have it coming. The AP reports that the College Republicans at Roger Williams University have started a "whites only" scholarship as a form of protest. I have found that college Republicans often have a legitimate point to make, and legitimately feel their views are stifled by a liberal college environment, but too often choose to express their views in a bad way. At least, that was my experience at Berkeley...

This particular action seems bad to me for a few reasons. First, unless the group is claiming that the school doles out money based on race without regard to merit or need, then scholarships have little to nothing to do with programs like affirmative action or other school-sponsored minority recruitment programs. Second, private groups should be able to give out money however they want, and if they choose to give out minority scholarships, so be it. Third, if the scholarship were legitimate instead of a parody I would have some respect for it since it requires "an essay on 'why you are proud of your white heritage.'" Why shouldn't people be proud of their heritage, so long as it isn't a message of supremacy or hate? But alas, it isn't about heritage; it is about irritating other people to make a misguided point.

Perhaps I am missing the College Republican's message here, but from the AP story it looks like just a stunt made in poor taste.

Mozilla Update

I really like using the Mozilla Firefox browser so far, but whenever I go to Matthew Yglesias, it screws the page up. My dislike of Microsoft makes this a bearable nuisance.

Microsoft Source Code Leak

CNN reports here that some of the Windows source code, apparently for Windows NT and 2000, was leaked and shared over P2P networks. The shared amount was about 15% of the total code for the operating systems. The shared portions are said to contain profanity, although I am skeptical about whether this was put there by Microsoft or instead some malicious third party.

One portion looks particularly troubling/bogus: "security experts said the compromised files . . . could arm hackers and virus writers with new weapons to launch more effective cyber attacks." First, Linux has long made 100% of its source code available, and it is widely regarded as secure. Second, if the only thing keeping Windows secure is secrecy of source code, then it was written with little regard for security in the first place. Read: blame Microsoft for making a crappy product, not the "hackers." And finally, even if these security issues are real (again, Microsoft's fault), it probably could be read as a front for Microsoft's real concern: people may actually be able to circumvent the Windows OS monopoly through using this code.

That's just my cynical tech world view.

"Scalia fumes in dissent..."

My Fed Courts professor often refers to Justice Scalia's tone as "fuming" or "furious," especially when he is dissenting in a case. I've heard this characterization from other sources as well, usually citing his dissent in Lawrence v. Texas that he delivered from the bench as particularly angry.

I've always found Scalia's opinions, even ones where he dissents strongly, to be well-reasoned and professionally delivered, even though there is the occasional stab at another member of the Court or the jurisprudence itself. Thus, I've questioned the characterization of Scalia's opinions as angry, and asked whether he has a reputation for being a hothead generally, but have not received a satisfactory response. I found this excerpt from law.com via How Appealing:
Outside the Court, Scalia is known as a witty, sometimes gregarious man with an Old World charm and gentility. But inside, the prospect of Scalia as a possible chief justice was greeted with stunned silence by some who work there, signaling that Scalia is not the most popular justice among the nine. Justice Thomas, for instance, has taken time to get to know the Court's labor force, but that is not Scalia's nature, some say. "He doesn't pay much attention to people he sees as beneath his intelligence level," says one former employee. "He is not popular with the administrative staff."
This seems to answer one of my questions--Scalia does not have a general reputation for being a hothead. It also provides some ammo for a claim about Scalia's tone in his opinions. But I still think the characterization of a "fuming" Scalia is misplaced, and may be made to undermine the quality of the argument. After all, isn't it easier to attack an opposing opinion if you characterize it as irrational and coming from a "furious" declarant?

Admittedly, I may be projecting my own Scalia vision onto the opinions and may be missing the tone others see so clearly. Then again, others may be guilty of the same offense. Unless someone can point me to some other evidence, I'll continue to hold my view that Scalia rarely, if ever, "fumes in dissent."

Queer is "Too White"?

The SF Chronicle ran an article on sexuality terminology. Via Tongue Tied, I read this:
And among people of color, the Chronicle says, the term “queer” sounds too white so they prefer the terms "same-gender-loving people" or "men who sleep with men."
This just seemed odd to me, and why is "too white" a pejorative in the sexual identity context?

Friday, February 13, 2004

Another Twist on the Same-sex Marriage Front

The AP reports this quote from one member of a recently married same-sex couple in San Francisco:
"'Even people who are anti-gay marriage might shift their thinking now and realize it's most harmful to take something away when someone already has it,' said Virginia Garcia, 40, after wedding Sheila Sernovitz, 50, her partner of 14 years."
As with other arguments made in favor of same-sex marriage, I can appreciate that this is an important issue for many people. However, I think this statement's logic is a little misplaced, and adds to the misleading rhetoric surrounding the issue. People do not have a stronger claim to an illegally vested interest than they had before it vested. At one extreme, we have no qualms about taking stolen property back from a thief, even though it takes something he already has. I think there are many people who argued for recounting votes in the 2000 presidential election, even though it could have stripped President Bush of something he already had. Environmentalists do not give up after a logging contract is made, even though this would take something someone else has. Finally, an appeals court has every right to reverse a judgment made on an erroneous ruling of law, even though it may divest a plaintiff of something she already had.

The San Francisco events are interesting, and it will be interesting to see how the legal challenges turn out, but what people claim to "already have" is beside the point.

Scientists Closer to Cost-Efficient Hydrogen Production

Scientists have developed a method of producing hydrogen from ethanol, a huge step toward an alternative to gas powered cars. AP story here.

I for one an excited about this. As I understand it, the major hurdle to overcome for implementing hydrogen fuel cells is hydrogen production itself, which has required large facilities and used fossil fuels. Anything that gets us closer to a world where we do not rely on foreign oil is a good thing in my book.

Thursday, February 12, 2004

CNN Misleading?

A CNN article today makes the following assertion: "As married couples, same-sex partners [in Massachusetts] would have more rights than in civil unions."

I suppose this depends on how one defines rights, and some would claim that even a denial of the title "marriage" would be settling for something less than equality, but I think many people would interpret this statement to mean that certain state benefits or legal recognitions would be less for civil unions than for marriage. For one of the rejected Mass. constitutional amendment proposals, this does not seem to be the case: "Spouses in a civil union shall have all the same benefits, protections, rights and responsibilities under law as are granted to spouses in a marriage." Even if we refer to federal law, I don't think even a marriage between same-sex couples would be recognized, so there is no distinction here either.

In this sense, the CNN article is misleading. If the debate is about word choice, the media should appropriately report it that way instead of portraying it as compromise on civil privileges.

Do We Need This Amendment?

No, not the DOMA one (though we don't need that either). As the story here reports, prosecutors are pushing for a federal constitutional amendment guaranteeing the right of victims to be present at all court proceedings for criminal cases. This strikes me as problematic for a few reasons. There is good reason to treat criminal prosecutions as crimes against the state, not the individual: it creates a relatively unbiased forum for determining fact, and the prosecutor presumably does not have the similar revenge motive of the victim. These could be undermined by the constant presence of the victim in court if witnesses are swayed by emotion, if the jury is unfairly biased, and (in non-murder cases) if the victim does not testify first, then they may conform their testimony to other witnesses', undermining the factfinding process. Also, this seems like an ideal situation for states to experiment with, rather than enshrining it in the federal constitution.

In addition, I don't see why this is news. There are several constitutional amendments floating around Congress as bills that will never amount to anything. I think there is even one proposing to ban the income tax. Search bills to see for yourself.

Wednesday, February 11, 2004

Marriage Semantics

I have a question: if in 1954 Brown v. Board mandated integrated public schools, but for some reason a state wanted to call black students "individual learners" instead of the traditional "sudents," would this be acceptable? My opinion is that it would be. First, there would be no legal distinction between a student and an individual learner, just the label. Second, the school facilities would be available to all equally, so it would not be a vehicle to renew segregation. Third, there is nothing inherently inferior about this label to perpetuate second class status (see my first and second points). Finally, if this would ease the transition into integration for some, then it would help to change minds, which is what really matters in the long run.

This, of course, was not the case. But it is today in the same-sex "civil union" v. "marriage" debate. As I have posted before, does this really fulfill the "separate" part of a "separate but equal" argument? Perhaps on only one level: same-sex couples would be denied a label that connotes traditional acceptance of a relationship, and would thus be denied a "full victory" in winning over a state's law. However, we should ask whether it is the function of the state to equally distribute services and privileges or whether it is the function of the state to change minds through full semantic equality. I don't blame gay rights activists for pushing for "marriage" as the label, but I think the argument often misconstrues the nature of the distinction, and invokes echoes of racial segregation in inapt places. "Civil unions" should be fine.

Update on IP Blocking

After further review of the claims in the article in the post below, I am less sure if this is a mightly blow against harsh copyright enforcement, but I am still optomistic. Wyatt Wasicek has created an internet service, AnonX, that basically acts as another user's proxy when using P2P services like KaZaA, thus blocking the IP address from prying eyes. This service is offered for a small fee, and he apparently already has 7,000 users whom he promises not to turn over to authorities and he "believes he can't be forced to do so."

A noble idea, but here's the problem: some IP address must be available from KaZaA (or other engine) when sending a file, either for AnonX or the sender/recipient's. Assuming that it totally blocks access to the sender's or receiver's IP, it still looks legally suspect, and even if AnonX cannot be forced to disclose IPs, it could still be held liable for copyright infringment. First, the RIAA or whoever else can find out an AnonX user is a gross infringer. Second, AnonX could be contributorily liable for a user's infringement if 1) it has knowledge of the infringing activity, and 2) materially contributes to the infringing activity. AnonX could have knowledge if it is warned about users infringing activity, and it would materially contribute by providing anonymity.

Third, AnonX could be vicariously lible if it 1) has the right or ability to control the users' activity, and 2) profits from the infringing activity. AnonX would fit the first part because it can certainly terminate users' accounts, and the site creator himself "says he'll cut off service for egregious downloaders of copyrighted material." The second part is met because of the fee.

Fourth, unlike the P2P networks themselves, AnonX would operate a centralized server, so would not likely benefit from the decision in MGM v. Grokster (which would not likely be controlling law anyway). Again there is a jurisdictional issue since it looks like the server is located on some island, but the creator is in Texas. All in all, a nice try, but I think some of my early praise was misplaced.

Protection from the RIAA

Someone has created a way for P2P network users to block their IP addresses from unwanted eyes, such as the RIAA. See here.

More on this later, but I think this illustrates one reason why private non-commercial file sharing should enjoy privilege from copyright infringment: futility. The technology will continue to make it more and more difficult to protect intellectual property through legislation and enforcement, and tightening the fist of government will only stiffle creation and progress in communication.

Best News Article Ever

Read this.

Tuesday, February 10, 2004


Seconding UH over at En Banc, go get the Mozilla browser. Now.

Sunday, February 08, 2004

Rumsfeld Clears Things Up

To an international audience, our Defense Secretary defended the US:
"I know in my heart and my brain that America ain't what's wrong with the world."

Glad that's cleared up. (More here),

Two convictions, one crime...

This article from the Sacramento Bee (which I found on How Appealing), alleges a criminal law conundrum: two men committed a crime, and, tried separately, were sentenced based on acts only one could have done.

Personally, I don't see a problem here. Although the Ninth Circuit called the prosecutor's actions "something between stunningly dishonorable and outright deplorable," I think this is a mischaracterization, unless I have the facts wrong.
First, the prosecutors were presenting contradictory theories, but did not know the true story, so were not knowingly convicting an "innocent man." Second, both men committed the crime, so (based on first year crim law) they are both punishable equally, regardless of who actually held the gun.

I may seem unsavory to present contradictory theories (and get convictions in both), but the alternative is to punish neither when it is undisputed that both committed the crime, and one committed some specific act during the crime that both are responsible for. Unless I read the facts wrong, this is just a trial strategy, not a miscarriage of justice.

Saturday, February 07, 2004

Why You Hatin' on Volokh?

This post over at Crescat states "I find myself wondering just what you'd have to say to get Eugene to write 'Oh piss off, you ignorant little troll'" in response to the Volokhs' verbose explanation of why 21st century American taxpayers are better off than slaves. I read the post to be tongue-in-cheek, but I just wanted to say that the day Eugene Volokh writes "X is so because everyone obviously thinks so" is a sad day for the blogosphere, and for humanity in general.

What's the Big Deal About Marriage?

As a preliminary matter, a short drama:
Scene: a mansion, where a man has just kicked in the door and is standing in the foyer.
The players: a RICH man, a ORDINARY man.

Rich: Who are you? Why are you here? Leave immediately!

Ordinary: I am just an average man, and I demand access to your home. As a human being I am entitled to the same privileges as you are. You don't understand because you are a selfish old hypocrite.

Rich: But this is my home! You are invading my property.

Ordinary: This place is so large, you cannot possibly care if I am here. Look how much room you have! I won't hurt anything, but you must recognize my right to be here.

Rich: I will recognize no such thing. But if you must, I give you permission to use the guest house. This must satisfy you, because you will have all the comforts of home, and all the space you need.

Ordinary: This is preposterous. Anything less than access to your mansion is an insult: as a human I am entitled to everything you have, and anything less is akin to segregation.

To analogize to the gay marriage v. civil union "compromise" debate, the marriage is obviously meant to symbolize marriage, and the guest house the civil union. As an intuitive matter, the civil union is the lesser alternative, but provides a good amount of civil benefits: intestate succession, hospital visitation, perhaps eases adoption, divison of property on divorce, insurance, taxes, etc. Everything but access to "marriage," the "fundamental right." But this denial can be justified on, I think, very reasonable grounds. The term "marriage," even though adopted by states as the term for their civil union, is used by religions, and is very important to many people. Mandating same-sex "marriage" is similar to a trespass in my opening: there is plenty of room for everyone, but staying out shows some respect for the property of others. In the marriage context, settling for a civil union would show respect for the religious institution, appease those on the fence about the issue, and will still retain all the civil benefits.

Another often invoked analogy is to "separate but equal," the infamous phrase from the Plessy line. I think this analogy is inapt. Here we would not have the inequality of Plessy, or more precisely, the inequality remedied by Brown: the inequality for race was in civil benefits--access to public accomodations, schools, etc.--and although we may intend to change people's minds about certain classifications by remedying civil inequality, we should realize that all we can change by law are these civil inequalities. The Civil Union would be analogous to racial segregation only if it produced a different result, i.e., permitting state agencies to treat marriages and civil unions differently in terms of benefits, intestate succession, divorce, etc. If not, then separate could indeed be equal (and, I think, not actually separate, just differently labeled).

What sometimes gets lost is that demanding "marriage" actually encroaches on some people's conception of the institution, damaging it, and invading something they believe strongly in. For better or worse, they have every right to feel this way. I don't really blame gay rights proponents for wanting access to the term "marriage," but I don't like how the debate short-changes real interests with what I believe is an inapt analogy to a dark period in our nation's history. I think that equal protection should allow a state to rationally distinguish between marriage and a civil union for the sake of respecting people's deeply held religious (or other spiritual) beliefs as long as the civil benefits are equal.

Dems on Terror

I've been largely disconnected from the Democratic race (mostly because I'm a Republican), but I have wondered why the Democrats have not embraced the War on Terror more. From what I see, it is largely an anti-Iraq War and anti-Patriot Act kind of message being pushed, while at the same time making vague references to national security without a clear plan. Even if one disagrees with President Bush's policy, he at least has done something about international terrorism and national security. Other than Iraq, the Dems have not pointed to anything they would change about this policy, and more importantly, have not given Bush any credit for what they would retain.

Howard Dean, for example:
On his website: "While Saddam Hussein’s regime was clearly evil and needed to be disarmed, it did not present an immediate threat to U.S. security that would justify going to war, particularly going to war alone."

Then, in what I think undermines his previous comment, he states: "From the beginning, I felt that winning the war would not be the hard part; winning the peace would be. This Administration failed to plan for the postwar period as it did for the battle, and today we are paying the price." Does Dean oppose the war (then, or now) because it was wrong per se, or because it would be too difficult to "win the peace"? These are discrete issues.

Also, he has no mention of Afghanistan. Why? Does he believe that military action was necessary or proper? Is winning the peace there easier or harder? If he thinks this was a proper action, he should say so, even if it means giving Bush credit.

But then Dean is out of it anyway. How about Kerry?
First, I am hard pressed to find any mention of current/past policy about Afghanistan. Good or bad, he should take a side in this element of the war on terror.

Kerry seems to emphasize the unilateral action of the US in the Iraq War as the problem, not the war itself. See here. Unlike Dean, he has a clearer stance on the security issue, but seems a little inconsistent with his internationalist priciples: "Perhaps it reflects inexperience, but for Howard Dean to permit a veto over when America can or cannot act not only becomes little more than a pretext for doing nothing – it cedes our security and presidential responsibility to defend America to someone else -- a profound danger for both our national security and global stability." Does this mean that Kerry would have gone to war when we did, or not? The rhetoric of building international coalitions is nice, but if it will not be built (e.g., heavy hitters like Germany, France, Russia, China, Japan, etc. absolutely will not support the war), do we go? I'm sure President Bush would have loved to have had international support, and asked repeatedly, but in the end made a decision about whether to go. Kerry cannot have it both ways: either he would have gone to war or would not have; he cannot make his decision in a hypothetical world where there was international support, and fault Bush for not living in that world.

On the other hand, he has the utmost respect for the US troops in Iraq, and I think genuinely wants to see the right thing done post-war. But I think his position on the war (maybe good, bad aftermath) is a good predictor of his future plan for international action.

Clark is just a nut:
On Clark's 10 Pledges:

Pledge 2: "I will never ask our troops to risk the ultimate sacrifice or ask their families to pay the ultimate price of patriotism except as an absolute last resort."

Pledge 9: "I pledge to use all of my experience and determination to fight the terrorists who have attacked our country, to defeat them and to work to prevent them from rising again."

Question: How is "last resort" military action consistent with "creating a U.S.-Saudi commando force to work the Afghan-Pakistani border where bin Laden is thought to be hiding?" I read this as saying that he will use military force as a last resort...unless no one objects. Again, trying to have it both ways.

I would like to see a little more concreteness on what policies are good, what they would try to do different, and giving at least some credit where credit is due, rather than a hardline anti-Bush-at-all-costs stance. After all, many Americans think the war on terror is a good idea, want to feel secure, and believe that at least some of Bush's policies were a good idea. Why not embrace the war on terror, make a realistic proposal to continue or revise it, stop the anti-Bush rhetoric, and make the real issues domestic ones?

Friday, February 06, 2004

Rumsfeld on Free Speech

I recently posted on how the Iraqi council banned the Arab television network Al-Jazeera for a time following allegedly improper news reporting, and I remarked on how it just served to undermine the transparency of the government, and would undermine free speech in an emerging government.

Donald Rumsfeld had this to say about Al-Jazeera:
"We are being hurt by al-Jazeera in the Arab world," he said. "There is no question about it. The quality of the journalism is outrageous - inexcusably biased - and there is nothing you can do about it except try to counteract it."

Part of a full story here. I interpret this as fighting bad press with counterspeech. If so, then I hope this American influence is felt by the Iraqi governing counsel, and they don't make any more moves that undermine the transparency of the new Iraqi government.

Life as CME

This week I began working as the chief managing editor of the UCLA Law Review. The old board is still transitioning out, but the law review never stops, so we have plenty to do already. Good times.

So far, favorite Bluebook periodical abreviations:

Copyrighted Yoga

Alluded to in copyright class, now reality: Bikram Choudhury is claiming copyright in his brand of yoga, performed in a room heated like a sauna, for 90 minutes. (Link here, which I originally found on How Appealing). I don't think his copyright claim can succeed.

Choudhury is not claiming copyright in the poses themselves, which are drawn from "84 classical ones that have been taught in India for centuries." Instead, it looks like he is copying them as a sequence, or in copyright terms, a compilation. The Feist decision only requires a minimal amount of creativity, and if in his yoga master opinion these 26 postures, in this order, are particularly effective, then it may be copyrightable.

However, as a whole the compilation of yoga postures is not meant to express anything: it is meant to be performed by the individual for his or her own well-being. Alternatively, I believe a copyrighted coreographic work may be privately performed without violating copyright, so individuals would still be free to use the sequences themselves. Also, because of its functional aspect, the yoga postures look more like uncopyrightable ideas or processes.

There could still be an argument for Choudhury because someone must perform the postures in order to teach the sequences to others, and this performance may indeed be public within the meaning of the copyright act. But if demonstration of an uncopyrightable idea or method is not allowed, then it would effectively allow control over these uncopyrightable elements. This cuts a little too close to the line for my taste.

All in all, it is a tough case, but I hope a court rules that the yoga sequence is uncopyrightable. Besides, Choudhury's trademark claim looks much stronger, and he could still control verbatim reproduction of his book.

Thursday, February 05, 2004

Religion vs. Other Values

David Bernstein over at the Volokh Conspiracy posted this yesterday about how some conservatives argue for privileges based on religion (e.g., an employer making an accomodation for someone who refuses to sell porn for religious reasons while not allowing other employees to refuse) while rejecting privileges for other classifications, such as race. At first I agreed with him, but now I'm not so sure.

First, religion is not very analogous to race in, for example, the workplace context. A refusal to perform a certain job function required of others may occur as an inherant part of practicing a certain religion, while I cannot think of a similar occurance happening for race. I cannot see where as an inherent part of someone's race they would refuse to perform certain job functions. In this context religions are more closely analogous to disibilitie, thus the application of "reasonable accomodation" seems correct: a person, as an inherent part of a belief system (as opposed to a physical/mental condition) cannot perform a job function.

Second, just like for disabilities, if it would be unduly burdensome for an employer, as Volokh states the law, they may refuse to hire a person of a certain religion. Alternatively, if the employer was not aware of this belief (and it was not disclosed), then the employer should be able to fire the employee for failing to perfom their job if the burden is unreasonable. The employer is perfectly free to screen ahead of time for employees who would not perform essential job functions because of religious reasons.

So I think it is perfectly intellectually honest to oppose preferences based on qualities that do not affect the job (e.g., race) and at the same time argue for mandatory reasonable accomodations based on religion.

Two-headed Baby Gets Operation


Wednesday, February 04, 2004

Marriage Equality

After reading this slightly odd post, I got to thinking: does the Commonwealth of Massachusetts hate its single residents?

Single people do not recieve the tax, visitation, or death benefits of married people. The basis for this surely cannot be because of family structure, because many single people have children. In fact, don't they need the tax benefit more? The basis also surely cannot be that a marriage between two people is "sacred." Are people worth less when they are alone? Has our society forsaken individual autonomy? The denial of the benefits of marriage show nothing less than animus toward the single.

In other news, the SJC of Mass. decided that same-sex couples must be allowed to marry, not just enter civil unions (story here). Seriously though, I am happy for the couples that will be getting married in May, but I don't think the SJC's decision rests on a sound logical basis distinguishable from other marriage bans, like polygamy and incest. We'll see how those are resolved as they arise.

Taking Copyright to the Streets

The issues of the RIAA, the DMCA, and privacy seem like hot topics these days. See here. My hope is that people will realize that the current state of copyright law affects more of their life than just privacy. Beyond subpoena powers and technological protections, the public domain has been eviscerated, and the creative engines of society are continually being tied up in legal schemes.

Articles like the one it linked to will serve an important function: bringing intellectual property issues home to people. Keep 'em coming.

Slow Blog Day for Me

The last few days I have found two perfectly good pencils and a highlighter on the ground. Score!

Also, the highlighter tells me it was "[m]anufactured for KINKO'S by the Visually Impaired & Blind." Nice.

Monday, February 02, 2004

Isn't this Romer?

The mayor of Cincinnati is calling for the city to repeal a 1993 city charter amendment that forbids "enactment or enforcement of gay-rights laws" (AP story here). But isn't this precisely the same thing that did not pass muster in Romer v. Evans, 517 U.S. 620 (1996)? The law on its face looks flat-out unconstitutional as it stands.

But then this brings up an interesting point that my Con Law professor made: even if the law forbidding laws protecting sexual orientation are struck down, does this place an affirmative obligation on the state (or in this case, city) to actually enact the protective laws (which were previously banned)? In other words, even if this law is repealed, it will largely be symbollic as discrimination based on sexual orientation will still be perfectly legal absent further legislation, just like discrimination based on cat ownership, favorite food, or being a Red Sox fan. Still, maybe the repeal's symbolic value is good, as it can set the stage for the other legislation.

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