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Friday, April 30, 2004

Equal Time? 

The President of Westminster College invited John Kerry to give a rebuttal speech after he was concerned about a previous speech by Dick Cheney to be "Kerry-bashing." AP story here. And I'm sure this will establish a precedent of colleges seeking out pro-Bush speakers every time someone speaks ill of the president on a college campus. Probably not.

More on the Seventeenth 

Brian has a small blurb about Zell Miller's proposal to repeal the Seventeenth Amendment, the one that made senators popularly elected rather than appointed by the states. Chris Geidner wrote some thoughts a while back here, and I posted something here. Bottom line, I think it's a good idea.

Thursday, April 29, 2004

Badass Science 

The AP reports here that army scientists have developed a fluid that will harden if struck suddenly, stopping stabbing weapons and projectiles. This has great potential for body armor protecting the arms and legs, which must stay flexible. Cool.

Blog Precision 

More thoughts on some comments to posts below, as an example I noted that I haven't heard the usual "Catholic" argument against birth control in the normal pro-life discourse, and commenter Paul called me on my imprecise statement: the current administration has denied funding to outfits that do not advocate abstinance, and the administration is not Catholic. I suppose I was being illustrative (and attributing the argument to just one of its common sources), but I can see how Paul is exactly right, and it undercuts my point somewhat.

Precision of terminology and ideas in the blogosphere is often important, even though most people should "know what you mean" with a little thought. I've had points attacked because of a minute point in word choice rather than the "big picture" argument, and even had people criticize my spelling (which is often poor) to add force to their attempted argument.

I don't think that asserting anti-contraception as a necessary component of the pro-life argument (and therefore inevitably following from any anti-Roe government action) is very forceful, especially without any explanation, but that shouldn't alleviate me of any responsibilty of precision either.

Wednesday, April 28, 2004

Another Abortion Thought 

Some of the comments to the post below made me think about something I heard second-hand from my friend Landon (who never ever ever blogs anything here, even though he can). When debating a pro-life person at Berkeley, he asked why pro-lifers didn't just agree to limit abortion, rather than totally eliminate it. The response was that since abortion is morally wrong, it would be like trying to just limit slavery as a compromise position on that issue, rather than its total elimination.

I think the above position is entirely tenable if one subscribes to a certain moral view of abortion. Whether that moral view is a viable one, however, is a different question. Also from the comments, I dislike it when people dismiss a "religious" argument about morality as invalid in a public debate. True, religion and morality aren't the same thing, but many things that are religiously immoral are also immoral under secular views, including the killing of human beings, even very young ones.

Summarily dismissing arguments that have religious overtones should be no more permissible than doing so for any other philosophy. Granted, I'm no philosophy expert (or even a novice), so I may misclassify things, but if someone were to say "abortion must be allowed because on ballance fewer unwanted babies will be born and this will be better than having uncared-for children that society will have to pay for," then I don't get to respond with "that sounds like a utilitarian view, and as we all know attrocities can be sanctioned by utilitarianism (e.g., slavery), so your argument is automatically rebutted." This is like throwing out certain philosophies, which may in practice be hard to confront, because there is no "jurisdiction" for those arguments in a political discussion (appologies for the Fed Courts spillover).

Tuesday, April 27, 2004

Abortion Talk 

I enjoy Chris Geidner's vitriol as much as the next guy, but I feel that he loses it a bit here. I take his tone and language to mean, paraphrasing, that taking radical pro-choice position that "celebrat[es] abortion itself" is practically compelled by the Right, and is unassailable. Later, I think he sets up a bit of a straw man (responding to IrishLaw (IL): "IL doesn't want pro-choice people to have sorrow about abortions (many of us do); she wants abortion to be illegal. Since IL won't go to meet pro-choice forces in the middle of the road, why should they?" What is this middle position for pro-lifers? Abortion is really great but it should be illegal? I actually cannot think of a tenable, substantive middle-ground position from a pro-life standpoint, other than abortion should be illegal [insert litany of exceptions], which many pro-lifers take.

Perhaps Chris has a point about IL using intense language in the past (I have no firsthand knowledge of past posts or language used in any classroom) but the post he refers to seems to be tempered and professional, lamenting the treatment of the pro-life presence at the recent pro-abortion march. And perhaps Chris would disagree with using pro-choice somberness against the movement, to somehow "expose the true feeling" that abortion is wrong. But if pro-choice folks who feel bad about aborted babies cannot justify the practice, then do they really believe it? And if they can justify it, doesn't that just enrich the debate?

I don't see any hypocrasy in arguing IL's position, and I think it's perfectly fine that someone who feels abortion is immoral can criticize pro-choice people who the speaker feels are not acting morally. A rebuttable position, but a fair one, and not hypocritical. To think otherwise is like calling A a hypocrite for wanting B to agree with him while A refuses to agree with B's position. All in all, I don't think Chris is in the right on this one, though he can certainly take a side.

Also, interesting article in the Jewish Journal of L.A. on how to think about abortion from a pro-choice stance after experiencing the humanity of a fetus.

Most Extreme Federal Court Challenge! 

Finished Fed Courts final. "Our Federalism" rules! I eagerly await my B.

Quick Note on Gay Campaign Speech 

Via How Appealing, this story about a high school that took down a student's campaign posters that read "gay guys know everything" and "queer eye for Hunt High." The ACLU is taking the student's side, calling this a suppression of speech.

I (as always) would like to have more information. But during school elections the school usually has a lot of control over the place and content of campaign posters. While the school could certainly not stop this student from saying these things, it may be a different story for posters. If the school had a specific rule it was enforcing about the content of campaign posters, and it would apply equally to statments like "a white guy is the best choice," then this is a stickier issue. However, it is an ad hoc decision by the school, I'd side with the ACLU on this one.

I'd actually look up some case law, but there's that darn Fed Courts final in 45 minutes . . .

Fed Courts 

Federal Courts final in about an hour. Sovereign immunity rules!

Saturday, April 24, 2004

I, Robot 

I'm looking forward to the new Alex Proyas film, I, Robot, due out in July, based on the book by Isaac Asimov. I loved his work in Dark City, and it will be interesting to see if his science fiction is as good with the sun out.

Most Sympathetic Sex Offender 

Via How Appealing, this case of a man required to register as a sex offender for life, failed to do so, and was sentenced to 25 years to life under California's three-strikes law. The defendant, Delbert Meeks, suffers from HIV (which he may have passed to his child) and hepatitis C, and was addicted to heroin. The California Court of Appeals affirmed the sentence.

I don't think I agree with most sex-offender registration requirements, and this opinion does not mention the nature of the original crime that required Meeks to register for life, so I don't know whether it was violent or involved children or something with a high rate of recidivism. Even if I wouldn't have agreed with the requirment, I understand the reasons for it, and because of that I don't disagree with this sentence. When a sex offender fails to register, this potentially creates a gap in law enforcement knowledge about a person believed to be a high risk of committing another sex crime. It makes great evening news fodder when a community discovers one of its residents is a sex offender, and also when the police "don't do anything" to prevent a repeat offense. Many people take this requirement very seriously.

It is possible to view arresting someone for failure to register as preventing a future crime. It's possible. But as a human being it's hard not to feel bad for Mr. Meeks based on the little knowledge contained in his appeal.

Friday, April 23, 2004

NEA on Abortion 

Fox News reports that the National Education Association, a teachers' union, is cosponsoring a pro-choice march, angering pro-life members. At some point, members must yeild to speech the group leadership wants, which probably also reflects a majority of the membership. For example, I imagine that not all members of the ACLU (or contributors for that matter) agree with every case it decides to take, but support the group's right to make those decisions. I'm not a big fan of unions and non-advocacy groups spending the groups resources on things outside its core purpose, especially if its members are not exactly free to leave without incurring significant costs (i.e., losing the benefits of union membership).

But protecting members against this kind of unwanted advocacy would probably pose a First Amendment problem. The restriction may be content neutral--for instance, no union may allocate funds for purposes outside of the main interests of the group it represents. Regardless of the subject matter of the speech, it would be restricted if it had little to do with the jobs of members, here abortion would probably not be tied in too strongly to teaching. The governments interest would be to protect minority viewpoint members from contributing to causes they disagree with since their only internal check would be to leave the union and lose benefits. Perhaps it would work, but I'm not even sure if it would be seen as content neutral (I have to review that section), nor am I sure of the exact structure of the NEA (although the story says it is a "union," I don't know how involved it is in collective bargaining, what percentage of teachers belong, or if withdrawing membership is that onerous).

Man, I have some reviewing to do . . .

Thursday, April 22, 2004

I'm No Scientist, But... 

...this report seems a little dubious. It claims many British homes are threatened by flooding due to global warming, projecting huge losses as soon as the year 2050. It explains the flooding will result from "rising sea levels, river flooding and the overwhelming of Victorian drains by flash floods." Conceding that the rising sea level point could very well be due to global warming, don't rivers flow to the sea, and would thus be unaffected by melting ice caps? I suppose the mouths of rivers could be affected, and certain rivers that are more-or-less at sea level, but it is hard to say. And what do flash floods have to do with global warming, unless it is creating an inordinate amount of rain? This article may have a point, but looks like it uses scare tactics to some extent.

Wednesday, April 21, 2004

Holy Crap 

In the Holy Crap segment tonight, Blender magazine has released a list of the top 50 worst songs of all time. On it, ranked nearer the worst than Right Said Fred's "I'm Too Sexy," is Simon and Garfunkel's "The Sounds of Silence." Unless this is a list of hugely successful songs that nevertheless sucked, then the whole list is bunk. Regardless, I think the inclusion of "The Sounds of Silence" on this list is indefensible no matter how you slice it.

In other travesty news, Rolling Stone's 100 Greatest Guitarists of All Time doesn't include Bonnie Raitt, who the magazine elsewhere describes as "the only woman in mainstream rock to be recognized as a guitar virtuoso," and is undeniably one of the greatest slide guitarists of all time. It seems the list adopted Joan Jett as a token female in lieu of Raitt's legitimate claim to the list. I also notice this list unjustifiably puts The Edge at #24, while relegating Angus Young to #96. I could go on.

Tuesday, April 20, 2004

Those Sensible Germans 

Fox News notes here that a German woman sued a licorice maker after she developed heart problems from consuming a pound of candy per day. She claimed there was no warning on the candy. Here are the sensible parts: First, even the Germans' frivolous lawsuits ask for reasonable amounts, here only $7200; second, the trial sounds like it cost less than settling (though this cannot be certain from the brief story); and finally, the judge ruled in favor of the candy maker, saying that the amount of glycyrrhizin (the ingredient that the plaintiff claimed required a warning label) was below the amount that required a warning.

Now I want some Red Vines...

Monday, April 19, 2004

More Hmmm... 

Some dude named Ryan Gabbard takes Amanda Butler to task for criticizing Andrew Sullivan's use of the word "overrepresentation" to describe senate representation of rural states. In particular, dude says this:
Most native speakers of English will read the sentence he wrote and know exactly what he means: agricultural states wield a power in American politics disproportionate to their populations and their influence on other parts of American life, and most importantly disproportionate to what many (but not all) people would consider fair.
Considering that Sullivan was referring to the Senate as part of our electoral system, then this statement must either think that 1) the U.S. Senate is an inherently overrepresentative body, and that many (but not all) people should consider this unfair, or 2) the Senate is fine, but only for agricultural states is this overrepresentation, and thus unfair (to most people). Perhaps the latter can be supported, though I don't see how, and so I will assume that Gabbard is taking the former position.

So what's so unfair about the Senate? Is only the House a proper legislative body since it represents people in proportion to their population? Would populous urban areas like California (although largely agricultural in area, contains many people) and New York make better laws regarding agriculture than more agrarian states? I could imagine a "tyranny of the urban" that takes unfair advantage of the less populous states in national politics.

Even if we accept the Senate as a bad lawmaking body that unfairly overrepresents agricultural states to the detriment of all, there is still the matter of bicameralism: all bills would also have to pass the population-proportionate House (incidentally, where all spending bills must originate) to become law. This would seem to prevent either body from pushing the other around too much. If the argument is that the Senate is blocking beneficial bills out of interest for agricultural states, then, well, isn't that its purpose?

I actually have no comment on Sullivan's piece, or whether his feelings on the senate are accurate. And if "overrepresentation" can be based on a notion of unfairness, then take it up with James Madison, because the Senate looks fine to me. Butler's position looks fairly defensible.

A Bernstein Post and Affirmative Action 

David Bernstein over at the Volokh Conspiracy posted a very nice piece about why we should be afraid of hate speech laws. He responds to the claim that Canadians are "exercis[ing] their regulatory powers in the service of human well-being and enlightenment" by noting that "leftists tend to believe that the wrong people cannot be trusted with too much power. . . . But, even if you are sure you know who the right people are, how can you predict in advance whether the right people will be in power in the future?"

I think this crystalizes my feelings on affirmative action, which I believed was not necessarily unconstitutional before (but nevertheless an unwise policy), and now believe must be unconsitutional under the Fourteenth Amendment's Equal Protection Clause (and the Fifth Amendment's equal protection element). First, (my assumptions only, based on some observations) I am not a big believer in diversity: people don't really appreciate it too much; people want to congretate (and quite reasonably) with people who are more like themselves. Bakke makes people say "diversity" instead of what they really believe. Second, even if we assume that artificial diversity is desireable, affirmative action only addresses one type of diversity: racial. Other types of viewpoints could be beneficial; a learning environment could benefit from political, state, religious, or national diversity, but these are not nearly as politically charged.

For those reasons, the most compelling argument for affirmative action is to remedy the effects of past discrimination, largely against blacks, by allocating spots to those groups in schools or employment. The constitutional problem comes in when we get practical: what groups get preferences? how many? for how long? While some may trust the governement to draw these lines, how can we be assured that future generations will do so? Will changing demographics turn remedial schemes into vehicles to implement the will of a new racial majority? Will political clout allow groups to always shout "racism" when a remedial scheme looks like it has accomplished its goals? Will courts "know it when they see it" and turn affirmative action off? I don't know that we trust government in the speech context to do so, so why should be trust it in this field?

At the end of the day, I am happier with a Constitution that doesn't allow "good inequalities that we really like" because I don't know that we can "turn it off." I'd imagine that for anyone to persuade me otherwise would require someone to convince me that whites should be punished, and that it is so just to do so that the Constitution can turn a blind eye for a while. I doubt this will happen.

Spotty At Best 

Finals are too quickly approaching, and I have to learn virtually all of free speech law in a week. Blogging will be sporadic and mostly incoherent. Blah.

Friday, April 16, 2004

Gotti Gets Nine Years 

CNN reports that mob boss Peter Gotti, brother of John Gotti, was sentenced to nine years for money laundering and racketeering. Kinda interesting, but made even more so because it was aided by testimony from Steven Seagal.

Thursday, April 15, 2004

Doesn't Look Like Manslaughter 

The AP reports here that the trial of three young men accused of killing a transgender teen opened in Hayward, California today. The killing was described as: "Angry shouts of 'Are you a woman or a man?' escalated to murder, fueled by the explosive combination of insecurity and 'tough guy' personas . . . ." The defense for two of the defendants claim the circumstances mitigated the killing from murder to manslaughter because it was done in the heat of passion.

I hope these guys get convicted of murder (except maybe for the guy who just helped buy the body; there isn't enough information for me to form an opinion on this). If I remember crim law class correctly, the "heat of passion" killing is based on one of two philosophies: "partial justification" or "partial excuse." A "partial justification" theory would say the victim is partially at fault for his own killing because he committed some wrongful act to provoke it, such as sleeping with the defendant's wife. This theory clearly does not apply here; the victim, as far as I can tell, did nothing to instigate this attack other than simply being transgendered.

A "partial excuse" theory, on the other hand, would excuse the actions of the defendant because he was acting from passion rather than reason, regardless of the source. So, for example, someone in a blind rage after witnessing a motorist run over his wife may be partially excused from killing an innocent third party who gets in his way. But in this case, the only source of rage would be from the victim's biological gender, and the passion must be objectively reasonable and not based on the defendant's ideosyncracies or peculiarities. It sounds like this killing was out of hate and ignorance about the victim's gender and identity rather than any harms suffered by the defendants. Unfortunately it isn't a slam dunk, but I think this is sound.

If the defendants' argue that the killing stemmed from their individual rage after having sexual relations with the victim, and thus feeling confused about their sexual identity, then even assuming this would constitute adequate provocation for a heat of passion mitigation, there would have been a significant "cooling off period" to negate the provocation. Thus, the crime would be murder and not manslaughter.

Like the prosecutor said, this was an "execution."

A Thought on Same-Sex Marriage 

I don't know whether I came up with this, or whether I am ripping someone else off. Does a state have an interest in protecting women from the traditional societal imbalance through marriage laws? For instance, there will often be an income gap between the sexes in marriage, and when children are added to the picture women are more likely to stay at home than men, or I'd think at least more likely to make professional sacrifices. These would create more of a need for things like alimony and community property that come with marriage by law.

I don't know that the same inequality exists for same-sex couples as there is not the societal pressure to assume a gender role that does not apply to both partners. If not, then the need for protective laws for same-sex marriage is less than that for opposite-sex marriage, and would justify one set of laws protecting the opposite-sex bond.

Write-On 

Scores are in, totals added up, and tomorrow we fight over who gets on the UCLA L. Rev. Good times.

Wednesday, April 14, 2004

Property Helping the Poor 

Interesting piece over at Fox News about Hernando de Soto, a Peruvian economist who won the semi-annual Milton Friedman Prize for Advancing Liberty. His solution to world poverty: grant the poor title to their homes and businesses so they may borrow against it and expand and improve their property. An interesting premise, and one that I would have to take more classes to comment on intelligently. Still, it sounds promising, and can certainly do no harm to try. After all, why shouldn't the poor have legal title to their homes and business entities?

Child Molester Freed 

The AP reports here that a child molester, almost certainly guilty (read the letter he wrote to his psychiatrist, which somehow got out), was freed after an appeals court ruled that he did not have the opportunity to confront his accuser, an 16-year-old who committed suicide before the trial.

I, for one, am starving for more information. From the AP story this result seems correct; I can't imagine that an appeals court would free this guy on a whim or is on a crim pro crusade. But assuming the boy's statements were admitted at trial, I assume they fit within a hearsay exception, and the confrontation clause usually stays out of this from what I learned in evidence, except for cases with multiple defendants cannot use the party admission exception against the non-declarant defendant.

This is one guy who will definitely be watched.

Holy Crap 

In the Holy Crap segment tonight, this story: guy tried to run over a woman because he wanted to have sex with her corpse.

Tuesday, April 13, 2004

Gmail 

Volokh posts today about one legislator's unnecessary attempt to ban Gmail, Google's proposed email service that electronically scans mail and inserts ads, because of fears about invasion of privacy. I agree that this is a largely unnecessary move that is just attempting to prevent people from voluntarily giving up something in exchange for a product they want: email storage and search capabilities.

But, as Volokh also notes, there are times when people need to be saved from themselves. I'll try to make a case here. First, what about the law enforcement implications of Gmail's search-and-advertise capabilities? Will people have the same reasonable expectation of privacy if they allow their messages may be scanned and altered? I think the Fourth Amendment would not count this as a waiver of privacy so as to allow law enforcement to similarly scan Gmail messages, but there is an argument here. After all, when people voluntarily give over their trash to a garbage collector they probably don't explicitly consent to human eyes going through it, but California v. Greenwood, 486 U.S. 35 (1988) held that the expectation of privacy in trash was not reasonable.

Second, maybe there is a slight possibility of a slippery slope here. If Google makes money, what's to stop other free email providers from reading your mail, too? Perhaps commercial ISPs could screen email electronically as well. Besides the fact that the world will become annoying, what if private companies start placing speech restrictions on email usage through electronic scanning? Perhaps emboldening companies by allowing scanning here is too scary, and should be stopped.

I don't buy these: the Fourth Amendment problem is tenuous at best (though theoretically interesting), and we could easily tackle real problems should they arise, rather than anticipating problems and unnecessarily restricting a business.

Genuine Class at Pacbell 

Barry hit his 660th home run yesterday, tying the Say Hey Kid for third all-time, behind Hank Aaron and Babe Ruth. The blast went over the right field wall into the cove, recovered by a very lucky fan. The Chronicle notes:
[T]he man who grabbed the home-run ball, with the decidedly modern name of Larry Ellison (no connection), had a decidedly old-fashioned take on the event. Instead of waiting to see what an auction house could do with the ball, he handed it over to the Giants for the relatively modest price of a few bats, balls and T-shirts signed by Mays and Bonds, plus an invitation to Friday's ceremony commemorating the home run.
Ok, so some autographed gear isn't such a bad deal, but I still think this guy showed some real class in turning over the ball. Even though it may not have fetched anything close to the price of the famed 73rd homerun ball, it was still a nice gesture to recognize the sentimental value to Bonds. Kudos to Larry Ellison.

Hmmm 

Some dude named Daniel A. Munz apparently took issue with my post about Kerry, using my six-line snark as an excuse to blast me on my economics knowledge, and probably my political leanings as well. I thought I disclaimed it pretty well, and tried to be a little humerous, but apparently I wasn't successful. I appologize to my readership of five (probably four now).

In other, and probably more important news, praying for fewer American casualties in Iraq is a joke, and liberals are finally being heard on a college campus after all these years of repression.

I actually wish John Kerry well, and hope he is elected president and succeeds in his "plans to lead America to better jobs, quality health care, energy that is clean, renewable, and independent, and greater opportunities for our children" while curing all diseases, and teaching Ethiopeans to make cornbread out of misery.

[UPDATE: Caution, Munz has a three-column blog.]

[ANOTHER UPDATE: Daniel Munz kicks ass, even if he does check his blog at 1am to see if people are talking about him. I hereby retract my shots at his posts.]

Monday, April 12, 2004

Nichols' Evidence 

The AP reports here that Terry Nichols' attorneys have sought dismissal of the murder chargs pending against him for the Oklahoma City bombings because prosecutors have not turned over some evidence. The prosecution denies having the requested evidence (documents and a video), and has said that "Nichols' defense team has been given all the documents [the prosecutor] has received from the federal government."

I don't know about this evidence. Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution is required to turn over all exculpatory evidence to the defense. The question is whether evidence that other people helped McVeigh with the bombing plot is actually exculpatory or favorable at all. The mere existence of other conspirators doesn't seem to cut one way or another as far as Nichols is concerned, and if anything just shows how elaborate the plans were and may actually be inculpatory. If so, it is not discoverable under Brady.

If the judge does rule the evidence existed and is exculpatory, it probably won't matter that the feds have the evidence; the prosecution is generally deemed to have possession of anything that law enforcement has, whether the prosecutor knows about it or not, and I see no reason to distinguish the feds from this analysis, especially since there was already a prosecution and there is probably no ongoing investigation to keep secret.

Thanks Nick! 

It should be pretty obvious for all five of you that read my blog, but Nick don't work here no more (read: his blogging efforts can be found exclusively at de novo now). Thanks to Nick for his brief but appreciated stint here at Ichiblog!

Chilling Speech 

The AP reports here that Victoria's Secret will not televise its annual fashion show this year, partly due to FCC crackdowns on media. I say this has gone too far. The VS fashion show was always on at night when parents could easily monitor their kids' viewing (which was not the case with Stern, even if I agreed with that decision), nor were there any "surprises" like with the Janet thing--everyone knew exactly what they were getting, and that's why they watched. I don't even think the fashion show was on before 10 pm. This is a blatant case of permissible speech that has been unnecessarily chilled. Grrr.

That Darn Kerry 

Apparently, John Kerry has unveiled another reason to hate GWB: the Middle-Class Misery Index. This tracks how much worse off middle-America is under GWB, probably using some-sort of math or statistics. This might be a good thing to track, and hopefully it uses realistic data that shows a meaningful drop in the standard of living attributable to things other than the cyclical economy and which can be remedied at the federal level, but I'm still going to call Kerry a jerk for using that title. Jerk.

Blog Aesthetics 

I've noticed that many blogs tend to clutter their sidebar, or sidebars for three-column blogs, with as much junk as they possibly can. I also wanted to make sure that my sidebar was filled with all the traditional stuff so it would look legitimate: the blogroll, links, counter, credits to all free services, ecosystem, etc. Now that I've calmed down, I actually like my sidebar: It is functional, uncluttered, and has enough stuff to make me look like an actual blogger. It doesn't take that much scrolling to view all of it.

I'd like to take this time to express my feelings on my blog pet peev: the three-column blog. These are unnecessary unless you need to raise a large amount of funds to support your info-junkie lifestyle. Take Professor Bainbridge for example. His is actually well done, mostly because the center column (the actual blog) is kept prominent. I think TalkLeft is less successful: the center column is too narrow, and the content blends in too much with the sidebars. I liked Matthew Yglesias's old two-column "classic MT" style much better; although his center column is fairly large, the sidebars are loaded with distracting pictures, mostly trying to get people to vote against GWB by bombarding readers with his image.

I'm a big fan of simplicity, and the less a blog looks like MSNBC.com, the better.

Saturday, April 10, 2004

Get On With It! 

It looks like both sides are complaining about how Kobe Bryant's trial still hasn't gotten underway. I'm no crim pro expert, and certainly do not know all the tactics in play, but why couldn't this have happened if the prosecution wanted it to:
  1. Investigate.
  2. Go to grand jury.
  3. Indict.
  4. Arraign.
  5. Trial.
  6. Lose.
Right now, it seems like so much time has been wasted. Ten months in, and still no plea. The defense may be using stall tactics, but it seems like the ball was always in the prosecution's court to make this go quickly, and they did not.

Spam-mobile 

Apparently, AOL confiscated a Porshe Boxster as part of a settlement deal with a spammer, and is giving it away. Story here. Nice.

Friday, April 09, 2004

Heresy 

Perusing iTunes, I run across this: Behind Blue Eyes, Limp (f***ing) Bizkit.

Sigh. I guess any exposure to the classics for the kids is a good thing.

Holy Crap 

In the holy crap segment tonight, this story (via the AP) of an eighth-grader found stabbed forty times in a middle school bathroom. Another boy, according to police, confessed to the stabbing the same day, but is now pleading not guilty.

If I had faith in the juvenile justice system, I would say charging this boy as an adult is wrong.

Thursday, April 08, 2004

Racist in Trouble 

The AP reports here that voir dire for white supremacist Matt Hale's trial has begun. Hale is accused of soliciting to kill a federal judge. Thanks to the Bash Man for the pointer.

At the end of the AP story though is this interesting tidbit:
Hale earned a law degree and passed the bar exam but was denied a license in 1999 by an Illinois committee that rules on the "character and fitness" of prospective lawyers. The panel held that his racist views would prevent him from fulfilling a lawyer's duty not to discriminate against participants in court cases. He unsuccessfully appealed the decision all the way to the U.S. Supreme Court.
Now, I don't really disagree with this outcome because this guy is slime, but I wonder if other kinds of viewpoint-based determinations keep people from practicing law. For instance, I imagine that some criminal defense attorneys, possibly public defenders, distrust and are hostile to police, who may regularly appear in criminal trials and/or on juries, but nonetheless conduct themselves professionally and thrive. I imagine a good number of prospective lawyers, as are a good many people in society, are somewhat hostile to gays, but I also imagine that they do not systematically apply their beliefs in court. The fact is that there are some objective procedural safeguards to protect overt prejudice from ruining a trial; jury selection challenges if someone is using group bias with his peremptory challenges, prejudice/probative calculations to lines of testimony, restrictions on closing arguments, etc.

I don't know that "moral character" examinations should test for social ideologies on the rationale that problems may occur under a judge's watchful eye at trial. Rather, it should weed out those who may behave unethically--disserving their clients, incorrect billing, suborning purjury--when there are no safeguards at all. Maybe I fear the slippery slope here too much, and it would only apply to extreme cases, as this one was.

Wednesday, April 07, 2004

Dogs as Technology 

The AP reports here that the Supremes will consider whether police may use a drug-sniffing dog to search for drugs in someone's car without a reasonable suspicion that the car contains drugs.

My impression is that this kind of search may well be unconstitutional. The source: Justice Scalia. In U.S. v. Karo, 468 U.S. 705 (1984) (not the Scalia decision) the Court held that a tracking device that let the police know where a certain container was located inside a house violated the Fourth Amendment, and in Kyllo v. U.S., 533 U.S. 27 (2001) (Scalia) the Court held that the police cannot use a thermal imaging device to see if an abnormal amount of heat was being generated inside a home, reasoning that technology cannot allow the police to learn about the home's contents.

This case is different in two ways: first, dogs are not technology (and are in fact quite common), and second, this is a car, not a home. Both cut against finding the search illegal as were the searches in Karo and Kyllo. Still, I think the dog search can follow. First, dogs may not fit in the "widespread use" exception to Kyllo, which left open whether technology that lowers people's expectation of privacy is still forbidden, because the dogs' special training makes them different than the average dog, and thus not in widespread use. It would be a little perverse to have a widespread law enforcement practice diminish citizens' expectation of privacy, and where dogs are currently in use (airports, etc.) privacy is lowered for other reasons, so that should not make privacy invasions by dogs generally widespread.

Second, as to cars, there may be a diminished expectation of privacy, but the invasion of privacy should still hold. Although an officer may generally ask questions of a person in public without suspicion, the person is always "free to walk away." The driver is captive at the stop, and assuming he does not consent to the dog sniff search, does not have the same freedom not to answer that mere questions carry. Thus, the dog sniff is still invasive and "searches" the interior of the car where ordinarily at least reasonable suspicion is required for any kind of police viewing.

I think specially trained dogs are roughly analogous to the technology in play in Karo and Kyllo, and thus fall afoul of the Fourth Amendment. But there's plenty of room to argue here.

Bluebook, Sweet Bluebook! 

In a conversation with Nick today, he brought up the oft heard refrain that THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (17th ed. 2000) is sort of cumbersome and create unnecessarily tedious work. I, of course, reacted violently, as it called into question my very existence. The conversation got a little abstract, but I am now going to post my defense of id.
  1. If the Bluebook didn't exist, some system of standardization would have to take its place, unless a journal wanted to look sloppy. Aesthetic appeal, as well as the appearance of professionalism and standardization between issues of the same journal compel some form of citation system. Any system would require the same level of tedium as Bluebooking.
  2. The myriad typeface conventions in the Bluebook have some reason: the body text is largely uncluttered, using only roman type and italics, while the more elaborate footnote rules may emphasize sources that are more authoritative than others. Where it fails in the latter regard, see supra note 1.
  3. A certain amount of information needs to be retained to identify cited sources, and The Bluebook retains less than some other systems (remember bibliographies in undergrad?), thus saving some work.
  4. While it may be that a certain amount of inertia compells Bluebook compliance, I don't count this as a negative: any system that achieves the desired goals and cannot be replaced with a better system is successful.
That's all I've got.

Tuesday, April 06, 2004

File Sharing Rationalizing 

Nick over at the de novo finds a great story in the NY Times positing that file sharing may not hurt sales of CDs in any significant way. Good news, but only if it causes something more to happen.

A problem in the p2p debate is that the file-sharing public has a drastically different motivation than does someone like Larry Lessig to copy music: price, and availability. Normal people are not on a copyright crusade. The average user is being a rational market actor, taking the best value they can find. I worry that this mentality cannot sustain a movement away from the stranglehold of strict copyright protection.

The problem is that file sharing looks a lot like "stealing" or "piracy," not only to the RIAA, but to average people as well. P2p users are able to rationalize this away with myths about artists not getting money from CD sales, artists making all their money from performances, and the record companies having plenty of money to go around. The NY Times article only reinforces this rationalization, and maybe only for the short term--succeeding generations may less and less inclined to buy music when they are raised on file sharing. This is why I think it is damaging to reinforce it too much.

The better solution is to take the debate away from the RIAA's turf, even if data shows that arguing "no harm" could be a short-term winner. Intellectual property needs to be completely disassociated from personal property. People should feel they can access works because they are a public benefit, not because the owners allow them to, or because of some Robin Hood mentality. In a time of unprecedented freedom of communication and dissemination of creative works, the public needs to start hearing Lessig and the EFF, not rationalize their market behavior. If, in fact, there is no market harm to the music industry, then perhaps this can be a vehicle for Congress to change the law and give people back the public domain, and let copyright work for the public.

Monday, April 05, 2004

Sovereign Immunity News 

The California Supreme Court in a opinion issued today (indeed, issued only minutes ago, thanks to the Bash Man for the pointer) county sheriffs may not be sued under the federal civil rights statute, 42 U.S.C. § 1983:
[A]s agents of the state when acting in their law enforcement roles, California sheriffs are likewise absolutely immune from prosecution for asserted violations of that section. . . .
We also consider whether the sheriff’s deputies involved here were entitled to qualified immunity under section 1983 because reasonable officers in their position would have believed their actions were lawful under established law.
So deputies are not agents of the state, so do not get absolute immunity for their actions. Even so, it looks as if the sheriff's department may never be sued in its official capacity, even if individual deputies may be.

Run to Canada and Share Files 

This story about a Canadian judge that refused to allow a record label to sue file sharers is causing a little bit of a stir. Thanks to Tyler Cowen for the pointer. As much of a fan as I am of p2p networks, I have to concede two points: first, the users are infringing copyrights; second, the record labels have the right under copyright law to sue (assuming Canadian law is similar to the rest of the world's, and that the evidence is there). The article is sketchy on details, but this line makes me think the judge really got it wrong:
As part of his decision, the judge said he didn't see a real difference between a photocopier in a library and a personal computer with songs on its hard drive and linked to a peer-to-peer network.
Well, yeah. But photocopying things can be infringing too! Unless the user fits within a fair use exception, then it would be just as wrong under existing law for people to make 5000 copies of Gravity's Rainbow on a photocopier and distribute them. Unless Canada has some really broad fair use laws . . .

Saturday, April 03, 2004

Not Guilty 

Shows what I know.

STAR WARS 

Will Baude posts here about the release of the bastardized versions of Star Wars on DVD, linking to this petition to release the original cuts.

Personally, I like the special editions (ducks to avoid thrown objects) because they look way better. In fact, as a life-long Star Wars fan, I approve of almost all the revampted scenes and added material, with a few exceptions. Most notably, (agreeing with Will on this one) is Greedo shooting first, evicerating Han Solo's bad-ass image with the world's most innaccurate blaster shot. I also think that Darth Vader returning to his star destroyer in Empire is unnecessary and his voice sounds weird. And the "close the blast doors" thing is dumb (who's he talking to, anyway?). I can live with everything else.

I wish there was a middle ground, but alas the best option is to release the DVD double-sided, including both the original and special editions. Hear me, George?

Obeying the Law Goes Both Ways 

I saw on the news, and the AP reports here, that an Orange County school district is refusing to follow state law and allow transgendered students to file discrimination complaints. The school risks losing millions in state funds. [Note: I am unable to find the state statute on Lexis (it appears transgender does not appear in the statute), nor in any news stories.]

The school is clearly in the wrong here. State law that mandates recognition of sexual orientation/identity as a protected class subject to special protection must be obeyed. Just as I feel the San Francisco same-sex marriages that defied state law were wrong, defying state law to promote a moral agenda is wrong as well. This brings up stickier questions about when a law is unjust (i.e., which philosophy we base our laws on), but since this is pretty clearly a religious objection to a properly enacted law that does not appear to violate any natural rights, the school has only a very weak and unpopular leg to stand on.

Carnival Ride Breaks Open 

The AP reports here that a carnival ride in Miami broke open and injured seven people. " A piece of paneling came off "The Gravitron" while it was running late Friday, Miami-Dade police spokesman Juan DelCastillo said Saturday. The ride pins passengers against its perimeter with centrifugal forces." The Gravitron was always one of my favorite rides when I went to the fair. Rides like this are usually regularly inspected, and the story notes that authorites do not know of any other accidents involving this ride in Florida. Unfortunate.

I have a soft spot for amusement ride news since I used to work in a theme park.

Of Slipperiness and Slopes 

My thoughts on the Pledge of Allegiance are posted below, but I haven't yet taken a side in whether I think the words "under God" are unconstitutional. Thinking about it, I think words are constitutional. Holmes said long ago that "The life of the law has not been logic: it has been experience." THE COMMON LAW 1 (1881). As I posted before, even though I have never been a religious person I have never felt offended or alienated by the words "under God," and I don't see a theocracy that sprang from the 50 years of its use. The only thing that could expell those words from the pledge is mere principle.

Some principles are powerful, and the separation of church and state should be taken seriously, and is taken seriously, by decision makers. What it comes down to is slippery slopes on both sides: on one hand the nation becomes a Christian theocracy, and on the other any mention of God in public life is eradicated (because the only way to be "undevisive" is to eliminate religion and make those who believe in God shut up). Both of these are very unappealing, but I find the second one both more plausible.

If the words "under God" in the pledge are held unconstitutional, then it would be easier to eliminate other things from public life, such as the analogous case of "In God We Trust" on our money. But it is also a matter of whether to allow a cross in the Mojave desert used as a memorial to those who died in World War I that the ACLU is pressuring to have removed, allowing a public official to even say the word "God" in an expression of goodwill, and allowing churches to have tax exempt status. I can visualize all of these things more easily being wiped away by courts than I can see America becoming a fundamentalist Christian theocracy. I don't want to see them wiped away because they are important to individual faith, which I respect, and perform valuable public functions as well.

Experience is on the pledge's side: 50 years and still a secular republic (with religious people in it, allowed to express themselves openly on public matters). I can tolerate "under God" in my country because I do not fear it, and I think my security is justified. Atheism has the luxury of being a belief by omission; how generous of Newdow to want a government declaring itself "under no God" when his belief is fully affirmed simply by saying nothing. I can respect the countless ways secularism forms our society (sometimes to the detriment of religion), and I can respect two words in a pledge.

Friday, April 02, 2004

More on Newdow 

The New Republic has an excellent article here on atheism, Newdow, and Newdow. Thanks to Chris for the pointer. I take issue with two things. First is this quote: "it is one of the admirable features of atheism to take God seriously." Well, it is one of the admirable features of tolerance and intelligence to take anything seriously, even if one disagrees with it, but I doubt atheism has any more of a claim on this than other things.

If anyone was in college a few years ago, then you might remember the "I Agree With ____" people, meant to show nondenominational Christian solidarity and belief. At Berkeley, people agreed with Paul (some guy, not the Bible guy). For a week people wore shirts that simply said "I Agree With Paul." At first provoking only confusion (people showing up on Monday with identical orange shirts), but it then turned into what I call the "huge Paul backlash." People came to school with shirts that said "I Agree With Nietzsche" and similar shirts, not to express a view, but to taunt the Paul folks. I remember quite clearly the open hatred of Christianity as an "exclusionary religion," and the "I Fucked Paul's Sister" shirts. Of course, I can't label everyone that participated in the huge Paul backlash an atheist, but there was an anti-religion spirit, and I imagine a good number of those people must have been atheists.

"Taking God seriously" can mean many things, but it sounds like the article uses it to mean tolerance and that atheists confront (combat?) God with "reason" rather than "passion." Sometimes this may be so. But I know people have seen the sheer arrogance of some atheists who use "reason" to pity the poor fools who have been suckered by churches, who corrode society with their idiotic blind devotion, and impose their "values" as if they were correct. I've seen people who must have felt great solidarity in an intellectual community where to reject God is so obviously right, and were not embarassed impose that view on others in an uncivilized fashion. No, atheism doesn't have this admirable feature that takes God seriously, other than as a formidable adversary. If atheists are tolerant, and more so than he devout, it is because of another quality independent of their faith.

The TNR article makes this excellent point: "American unbelief can perform a great quickening service to American belief. It can shake American religion loose from its cheerful indifference to the inquiry about truth. It can remind it that religion is not only a way of life but also a worldview. It can provoke it into remembering its reasons." Again, I don't know that unbelief will do this; tollerant intellectual discussion of secular beliefs can do this, but these are not necessarily the same. Just as the article laments confusing morality with religion, so to does it confuse atheism with secularism. If we assume fanatical devotion to a philosophy, what a secularist does when she hears the word "God" is not the same as what an atheist does. The public virutes we want to instill with the separation of church and state come from secularism, but is the best way to achieve that to erase God from the public sphere? I don't know.

My first point of contention was long, but my second can be reduced to some simple advice: read the last paragraph of the article first. Only then do we get a qualification of support for Michael Newdow: "There was something too shiny about him, too dogmatic about his opposition to other people's dogmas." I don't know what this should do to the analysis of the Establishment Clause question, but as I've said before, Newdow is not a secularist, he is an atheist, and I'm not sure I want the Constitution to impose his world on all of us. I think this qualification of Newdow should be up front, and the praise elsewhere in the article should be taken with a grain of salt.

All in all, a quality article.

[UPDATE: Speech is Good] 

InstaPundit: "Unaccountable corporate money influencing politics? Obviously, campaign finance reform hasn't gone far enough."

Ichiblog: I don't much mind that Hollywood money is going into anti-Bush stuff. It's the "marketplace of ideas;" as long as the material is expression of opinions and not reporting falsehoods and conjecture as facts, then I'm confident that the American public knows that Ross and Chandler can't protect them from terrorism, but that GWB just might be able to.

Additionally, this kind of stuff isn't worth a speech restriction akin to campaign finance, or something equally effective at restricting the influence of celebrity as some laws are at restricting the influence of money. I'd prefer to be guaranteed the right to mortgage the house and sell the car to make a short film about John Kerry, or pool my money with others to do the same. Unfortunately, even though I think such a restriction is a bad idea and should be unconstitutional, some campaign and corporate restrictions seem to be leaning the other way. Austin v. Michigan Chamber of Commerce held that corporate speech may be restricted based on the government's interest in making sure "expenditures reflect actual public support for the political ideas espoused by corporations." I haven't had the time or the will to pick apart McConnell v. FEC.

Anyway, we should all be on guard against restricting some speech that looks like "bad speech," especially in the paradigmatic area of speaking about the government.

Thursday, April 01, 2004

Grand Theft Pig: Vice City 

California Penal Code Section 487 defines the crime of Grand Theft as follows:
Grand theft is theft committed in any of the following cases:

. . . .

(d) When the property taken is any of the following:
(1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig.
(2) A firearm.

So, regardless of the value of the value, stealing any of the above things is automatically grand theft. We all know "grand theft auto," but I'd love to hear a police call for a "grand theft bovine animal," or "grand theft jack" in progress.

Simpsons Work Stoppage 

Reuters reports here that the voice actors for The Simpsons have stopped work due to a contract dispute. I was hoping it was out of principle--either stop cranking out ridiculous episodes devoid of humor and containing trite social commentary or WE WALK!--but it's just about money. D'oh.

"Intriguing and credible"... 

. . . but who cares anymore? Fox News reports here on a possible lead weapons inspectors in Iraq have on WMDs. But the cat is already out of the bag: the intelligence was based on sketchy data. The rhetoric of the war has already left the WMDs, and the war will be remembered based on other criteria now. If they find WMDs in Iraq, then it may be less embarassing for Bush, but it would still just be a happy accident.

I've never visited RightWingStuff.com before, so I found this design pretty funny.

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