Thursday, September 30, 2004


Debate spin on ABC: The debate was a significant win for Senator Kerry because prior to this people really didn't know what he stood for and now they do. Now, Kerry has momentum. The debate was a victory for Kerry.


UPDATE: Ok, maybe I was a little too quick to judge. Power Line thinks that Kerry helped himself here. I still didn't like him, and here's why: He had some impressive talking points, but despite what he says, he has no plan. His constant refrain is that his plan is to do better than Bush--I'll bring troops home quicker, train Iraqis quicker, and successfully convince other countries to give us material help. The first two seem exceedingly difficult, and the brief explanations on his site don't allay these fears. The last is a dream; countries that were on the take from Saddam are really going to contribute now? or would have if you were president?

I don't know if this went over that well, but I'm usually wrong, so we'll see.

Will it Make a Difference? 

N.Z. Bear on the debate: "Not that this is a revelation, but thus far, it looks like this will be a draw. Both candidates are doing ok, no obvious gaffes, no big moments (yet). I don't see a lot of minds being changed by this..."

I'm not sure. An undecided voter, having been bombarded thus far by Bush bashing and doom-and-gloom Iraq images might be heartened by the President's performance in that it was forward-looking, and did a fairly good job on Iraq as an important front in the war on terror. Also, I didn't think Kerry came across well as actually having a plan, continuing his nay-saying strategy. Whatever.

Second Opinion 

The Harvard Crimson reports here on Justice Scalia's speech at Harvard (via De Novo), which contains the following quote from the Justice: "What the Fourth Amendment prohibits is ‘unnecessary’ search and seizure." (emphasis added). Well, what the Fourth Amendment prohibits are "unreasonable" searches and seizures, quite a difference, I would think, especially in the context of racial profiling, which is what Scalia was reportedly being asked about at the time.

We all know for a fact that Scalia knows what the Fourth Amendment says, and that he cares what it says since he uses the textualist approach to constitutional interpretation. Therefore, at this point I'm inclined to think this is a misprint by the Crimson, and one that is quite significant, though I cannot locate a transcript anywhere to confirm or disprove my suspicion. If not, then I wonder what the reason was for the apparent change in terminology by the Justice.

Dreams of Peace 

Interesting quote from Bob Dylan's autobiography noted on Fox News here:
"…what I was fantasizing about was a nine-to-five existence, a house on a tree-lined block with a white picket fence, pink roses in the backyard. That would have been nice. That was my deepest dream."
I think, however, that the analysis needs a little more explanation:
So it turns out that the artistic embodiment of the '60s counter-culture was really a secret admirer of the American dream.
Maybe so, because there is nothing at all wrong with the American dream. One can certainly admire it, want it, yet also want everyone to be able to participate in it. Perhaps only the enlightened members of the counter culture could dream of a day when such a movement would not be necessary or proper, the same way that true warriors hope for peace.

That's part of the reason why I can admire the sixties counter culture: There was a need for a large cultural shift to try to rectify America's faults that have existed since the founding. To the extent that large portions seem to continue this movement through blind inertia, I cannot subscribe to it today, though I hope I would have had the fortitude to embrace certain aspects of it back then.

In any event, in order to tie this back to my law blog theme, do lawyers dream of a day they will no longer be necessary? </touchy feely post>

Wednesday, September 29, 2004

Improper Incentives 

Taking Federal Tax and Business Associations classes make me want to form corporations to somehow shield my income from the government. Is this healthy?

Where's the Bias? 

I'm firmly on board with the whole liberal media bias conspiracy thing, but sometimes I wonder if people are looking at the right criteria.

Little Green Footballs points here to an example of recent inexcusible bias at CBS over the whole "reinstating the draft" rumor. However, both that site and Power Line note that one of the interviewees, a woman named Beverly Cocco, while interviewed as a concerned Republican who abhored the idea of a draft, belongs to a group called People Against the Draft (PAD), a largely liberal organization that advocates bringing all troops home, and against the draft generally.

Now, it is true that if CBS were citing Cocco for a factual proposition without noting her membership in an organization that has an interest in portraying facts a certain way, this would be a problem. But this does not appear to be the intention; she is simply used for her reaction (albeit used in an attempt by CBS to garner sympathy for a made-up story) to a draft, should it come about, which is clearly a possibility in her mind. I don't see this, nor truly the failure to disclose her affiliation, as an example of harmful bias. It seems as if she simply choose to do something about her belief. What is the point of the news (such as it is) relying only on passive observers?

Part of my frustration is from the media reporting the revelation that some, perhaps most, of the bloggers involved in breaking Rathergate (Danron?) were (gasp!) partisan Republicans! My response: DUH! People with a stake in the game (at least for their prefered political party) are more likely to come forward with facts favorable to that side than those who are hurt by the facts. This is not bias, nor a reason to discount the sources, though reasonable inquiry (as for any such factual allegation) should be made. This is to be distinguished from facts brought forward, by, say, a person with a long standing personal grudge against a candidate.

This obviously works the other way as well, since partisan Democrats are more likely to bring forward damaging facts about Bush than Republicans or independants, but this doesn't automatically disqualify the allegations.

Too often I see things labeled "partisan" as a synonym for "biased" or "untrustworthy," which does not seem like a good measure to guage veracity. But perhaps I'm just frustrated since it seems like the news media only treats the words "partisan Republican" this way.

Almost There... 

With the end of baseball season approaching, I am faced with the very real possibility of beating Jeremy Blachman in this one fantasy baseball league I joined for no reason. I swear there was a prize of some sort, but cannot locate the relevant post on either his solo blog or De Novo . . .


As a friend pointed out to me the other day, those of us who do not currently subscribe to The Green Bag and receive their Supreme Court Justice bobblehead dolls, fear not! Simply go here and bobble till your heart's content (just click the images).

Tuesday, September 28, 2004

Holy Crap 

In the Holy Crap segment tonight, more rape of the elderly!

Monday, September 27, 2004

Monday Lull 

With the Supreme Court not issuing opinions right now, and class/law review weighing down my daylight hours, it is tough to find things to blog about that anyone would want to read. I'm going to try a more open-ended stream of thoughts in this post, and see if anything sticks.

I realized this Sunday that I must be a disappointment to the male race since I didn't watch a single football game. Not that I'm much of a fan these days anyway, but (as fantasy basball has proven to me) random sports talk beyond the level of who won and who lost is a valuable skill. I lack this ability with football simply because I don't put in the time. I do like watching football, and I could see myself getting into the game more than I do now, so it isn't a lack of interest. It isn't really a function of time, either (I waste much more than one day a week trying to find something interesting on the internet).

The obvious answer, fantasy football, hasn't escaped my attention. However, there are serious entry barriers: most of the people I know who are or would be interested in fantasy football already play in leagues for money and are quite knowledgable. This would be a significant disadvantage for me, and at the same time would force me to put in more effort than I otherwise would, probably to the point of wasting my time. As it stands, I would prefer a relatively casual league that would encourage me to watch football more, but not to the point of throwing away several days out of my week pouring over stats. Sigh.

I am receiving much better Sprint reception in the law review office these days, and on the law school campus in general, which pleases me. I had some buyer's remorse previously about my choice of service, but was hanging in there. This new develpment assures me that my choice was correct.

On another note, I've never took it upon myself to learn about Che Guevara, but some who's opinions I respect point to this Slate piece criticizing a new film based on his life, or something vaguely resembling it. After reading the piece, and more importantly what Che's contemporary admirers choose to leave out, I find the idolization of this man disturbing. Maybe it is just a function of seeing moral relativism through a different lens than those who sympathize with communism, and maybe it's my simplistic world view, but I have trouble sympathizing with anyone supporting a cause which, by its very nature, necessitates mass killings in the name of the "right" view on property, and necessitates an oppressive government to keep it all in line. And maybe this is why I'm not a historian/sociologist.

In other news, why is John Kerry such a tool? I mean, really, there are cartoon characters that could be doing a better job; there are pro wrestlers who have a better vision for america. And does anyone in the Democratic party listen to what is coming out of this man's mouth? Some advice (which I probably heard on TV): say it quietly to yourself before you say it to millions of people, then if it sounds weird, say something else. That certainly would prevent this kind of thing. Kerry is apparently upset about ads that don't support him ("I'm calling them 'misleadisments'"), and would instead run on the issues, rather than attacking the other guy. The article then spends considerable time on Kerry badmouthing Bush.

I could go on, but I think I'll wrap this one up. Must forage for food.

Friday, September 24, 2004

Tax Time! 

After spending a month in basic federal income tax class, it's time to try my hand at some tax blogging! The Blogger Formerly Known as Unlearned Hand posits here that lucky winners in the Oprah car giveaway certainly incur federal tax liability for the cars as income, but that perhaps an additional $7000 gift could cover the costs for the donees.

From what little I know, my first impression was that the cars themselves were not income, but gifts, and thus subject to different taxes (which we have not and will not study). This view seems to be the minority view among tax professors, although it did come up in tax class that at least one professor thought it was plausible to see the cars as gifts rather than prizes. After all, even though Pontiac apparently gave the cars away, Oprah was the apparent give of the cars, and it seems to be an act of generosity rather than a prize. Sticky, but on the other hand allowing such things as "gifts" might encourage odd structuring of give-aways in the future to skirt the tax laws, and would thus make it bad policy to treat these cars as gifts.

But the issue of Oprah (or Pontiac) paying the income tax for the people, if these are not gifts, would not fly. As also came up in class, paying taxes for somone else is itself income, so the recipients would have their $7000 taxed as income. It would still leave them with less tax liability (reducing the tax still owed to only a few thousand), but it is still a good chunk of change. So, if these cars are not gifts, it seems exceedingly difficult to avoid the tax man here.

Troubling Scope 

Eugene Volokh blogs here (guest blogging at GlennReynolds.com) that the Pledge Protection Act (PPA) of 2004, recently passed by the House, notwithstanding questions regarding its constitutionality, may in fact hurt the chances for keeping "under God" in the pledge if state courts decide to invalidate it, since the U.S. Supreme Court may very will uphold the words nationwide.

I have blogged earlier on the subject of why such a provision may be unconstitutional, but I'd like to focus now on the scope of the PPA. The language reads, in relevant part: "No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, . . . or its recitation."

This poses two large problems. First, it doesn't specify which portions of the pledge are affected, or which portions of the Constitution are to be off limits, so presumably the statute means all of each. The PPA also refers to the recitation of the pledge, not just the content. Thus, it appears that federal courts would be unable to stop a state court from compelling recitation of the pledge in schools, etc., in direct violation of the U.S. Supreme Court in West Virginia State Board of Education v. Barnette, interpreting the First Amendment's free speech clause. Of course, it could be said that the state is still bound to follow the Constitution, and the U.S. Supreme Court had previously ruled what the Constitution said, so such a deviation would not be allowed. Still, without a national enforcement mechanism, how would a state be stopped? Some may not regard this as a bad thing, but it could certainly create a constitutional difficulty.

Second, the statute would seem to exclude a federal court from hearing a constitutional defense in a criminal action involving the pledge or its recitation. Thus, states and Congress could pass criminal laws involving the pledge and escape all review. Not implausible, since even a short jail term or hefty fine could conceivably be passed in some areas. Again, one may agree with this result, but it would again create some constitutional tension.

On a side note, there is also the possibility that, under this statute, Congress could enact a law stating that "under God" in the pledge is constitutional, and enforce its law accordingly. After all, wouldn't this decision be immune from even Commerce Clause scrutiny?

Of course, I am reading the PPA very broadly, and I suspect that federal courts would bend over backwards to prevent the kinds of issues described above by taking a very narrow view of the PPA. But are these constitutional fun and games worth it in the first place, especially since the law could set a precedent of excluding other kinds of issues from federal court review that may not be so palatable or popularly supported?

Constitutional Copyright Decision 

Settling a troubling issue of copyright law, a U.S. District Judge has ruled that the federal anti-bootlegging statute, 17 U.S.C. § 1101(a)(1), is unconstitutional. The section reads:
(a) Unauthorized acts. Anyone who, without the consent of the performer or performers involved--
(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation . . .
shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.
The statute does not specify a time limit for the protection, seemingly granting protection from distributing a live recording ever. This seemed to run afoul of the Constitution's Copyright Clause, Article I, Section 8, which specifies that Congress may only create a right for "limited times" to authors in their works, and indeed one member of the judiciary has now said so.

The immediate implications for this law are not clear, since state law, according to the statute, may still protect live performances. If states do, then despite the positive result of reigning in the copyright law constitutionally, this decision could just result in uncertainty. I am not an expert on premption in copyright, but it may play a role, since states protecting unfixed works may encroach on the copyright code's exclusive rights.

Another possible implication is that the Digital Millennium Copyright Act (DMCA), the much maligned "paracopyright" portion of the code, could effectively be reigned in by this decision. First, it does not specify a period of protection, possibly running into the same difficulty. Second, in saving the statute, the DMCA could be interpreted to apply only to copyrighted works, implicitly aquiring the life + 70 term. This would be significant since some have postulated that the DMCA could create a cause of action for non-infringing activity, like accessing raw ideas, facts, making fair uses, or accessing public domain works. Coupled with the Federal Circuit's decision in The Chamberlain Group v. Skylink Technologies, ruling that the DMCA grants no property right itself, and that it "prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners," the DMCA could be rationally limited to the purposes of the copyright code, rather than succumbing to Congress's poor drafting on the side of the content industry.

Thursday, September 23, 2004

More Madness 

How come I haven't heard about this until right now? Apparently it is now illegal in California to share files on P2P (or other digital) networks without including a valid email address. Here's an excerpt from S.B. 1506:
653aa. (a) Any person, except a minor, who is located in California, who, knowing that a particular recording or audiovisual work is commercial, knowingly electronically disseminates all or substantially all of that commercial recording or audiovisual work to more than 10 other people without disclosing his or her e-mail address, and the title of the recording or audiovisual work is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), imprisonment in a county jail for a period not exceeding one year, or by both that fine and imprisonment.
Certainly plausible legislation, but I question the effectiveness of the email provision, since later the statute defines email address as "a valid e-mail address, or the valid e-mail address of the holder of the account from which the dissemination took place," seemingly including hotmail addresses, making the whole statute worthless. It might as well say "all people who illegally copy music must turn themselves in to the authorities, or else pay a fine."

So, from what I can tell this is a do-nothing nod to the content industry in its war on P2P users.

Greatest Story Ever 

This will likely be making the rounds soon, but I'll blog about it anyway. Six weeks ago, a UCLA student disappeared, stirring some focus on local news as well as posters around campus. Well, he was found. Apparently, he had mysteriously traveled to Tijuana, Mexico by getting on the wrong bus. He stayed there for six weeks, was "disoriented," and survived by drinking water from a gas station hose. Later, he was found by a kind Mexican family who took him in and gave him food. He has now returned home safe.

All I can say is: damn.

Wednesday, September 22, 2004

I'll Give it a Shot 

Will Baude writes that, despite Chief Justice John Marshall's contention that a constitution must not consist of a "prolixity of a legal code," Adrian Vermeule's contention that such prolixity is inevitable via judicial determinations wins the day. Seeing as he'd hear further argument for Marshall's side, I'll take a stab.

It is hard to compare both of Will's excerpts directly because Vermeule's is out of context, and I don't have time to discover that context right now, but one problem that jumps out is that Justice Marshall in McCulloch v. Maryland argued for an expansive interpretation of constitutional powers, more specifically the powers of Congress to enact laws. By contrast, the Bill of Rights contains certain defined rights of the public placing duties on government to stay out (including the Ninth Amendment's catch-all language).

Historically, I think the powers Marshall was defining broadly have indeed remained broad and free of prolixity--commerce is defined broadly (maybe even more so than in the early nineteenth century), the Necessary and Proper Clause is construed very broadly (although not without dissent from Randy Barnett), and the Supremacy Clause still allows the federal government to trump the states when the federal government has the power. These are surely uncomplicated doctrines when compared to the Fourth Amendment's protection against unreasonable searches and seizures and the First Amendment's free speech doctrines.

Even though Marshall's words came from the background of the Articles of Confederation, which saw an inept central government beholden to relatively independent states, I think it largly holds up today: the powers of the federal government, when properly exercised, should be defined broadly. It has been a hallmark of the twentieth century to cut back on powers not through complicated definitions of those powers, but complicated definitions of individual rights, privileges, and immunities against those powers. If we bifurcate what each is writing about, then I think Marshall holds up well.

I think this is the best way to give credence to Marshall's views while acknowledging the complexities of constitutional doctrines, and I don't think that drawing a line between constitutional powers and rights is unreasonable. I get the sense, generally, that the powers granted by the constitution are easier to take at face value. For instance, we have had no problem with giving Congress the power to regulate all things remotely affecting commerce, the President is commander in chief of the army and navy, and Congress can make all laws relating to copyright. However, under current interpretations, it seems absurd that government can never abridge the freedom of speech (as the First Amendment states), anyone can bear any sort of arms, and there is a right to an attoryney for all purposes.

Finally, Marshall includes his language, not as a pronouncement of constitutional law as simple or general law, but as an interpretive tool: The question presented at that particular point is whether the exclusion of an enumerated item from the Constitution is fatal to finding the existence of that power. He wholeheartedly rejected that proposition. At this point, it is impossible to avoid the discussion of the wisdom of leaving matters to future judicial interpretation rather than prolix constitutional provisions. The nature of a constitution, a legitimization of sovereignty, implies something infinite, and to codify the infinite at the nations inception is, by definition, impossible, and not merely a deferral of complexity (as Vermeule suggests) or just better left for judges to interpret.

That's my two cents.

Holy Crap 

In the Holy Crap segment tonight, this: "An 11-year-old boy raped an elderly neighborhood woman as three other boys watched, police said."

Sunday, September 19, 2004

Nuclear Power 

I've been a fan of nuclear power for a long time: it is a fairly good way to produce large amounts of electricity efficiently and without releasing sulfur dioxide and other harmful chemicals into the air for people to breathe. This article by Steve Milloy exemplifies why nuclear power has not been much more successful in the U.S.: Politics prevents storage of radioactive waste (even though releasing waste we breath is apparently ok).

In my high school calculus class, a Navy recruiter described civilian nuclear power as a stop-gap measure before some better fuel can be used efficiently. This makes sense: Fossil fuels suck, we are beholded to foreign interests for them, and nuclear power is safe. In the worst incident we've had with a nuke plant, Three Mile Island, just about everything that could have possibly gone wrong did, and it still didn't melt down. Decades later, we can surely do even better.

Nuclear power is especially promising with the idea of the breeder reactor, which can create fuel as it works, and produce less waste. This area is ripe for government support: the technology is already available, it is the best shot at moving away from fossil fuels, and the danger of nuclear proliferation of plutonium makes heavy government intervention inevitable anyway.

If some are complaining that stem cell research is being stifiled by irrationality, then they should be all over nuclear power.

Thursday, September 16, 2004

Miller v. King 

The Eleventh Circuit decided today that Title II of the ADA does not abrogate States' sovereign immunity in the prison context, distinguishing Tennessee v. Lane, where the Supreme Court held that Title II abrogated immunity as to access to courts. Link via How Appealing.

In effect, the court held that a prisoner cannot sue the state for money damages under the ADA. Remedies are available for injunctive relief against state officers under the doctrine of Ex parte Young, and may sue the warden in his individual capacity for money damages under 42 U.S.C. § 1983, assuming he cannot claim qualified immunity.

The issue, for those who care, is that the circuit treated the ADA as applied to prisons differently than the Supreme Court treated the ADA as applied to courts. Following the logic of Lane, this is somewhat persuasive. In a nutshell, under Lane a court must consider whether sovereign immunity is abrogated as applied to an individual situation. To do this, a court must find that the law at issue, here the ADA, is 1) explicitly meant to abrogate sovereign immunity under Congress' Fourteenth Amendment § 5 power, 2) the law is a valid remedial exercise of that power as applied to plaintiff's position, and 3) that such remedial action is congruent and proportional to the right violated. In english, whether the pattern of violations of the Eighth Amendment (the right protected through the Fourteenth Amendment in this case) were remedied by the ADA as applied to prisons, and it does not sweep unnecessarily more broad than that.

That's a mouthful. Although the court found that the first elements were met, it found that the ADA was not a congruent and proportional remedy for Eighth Amendment violations in prisons. The court explained:
In this case, we focus on the limited nature of the Eighth-Amendment right because in Lane, the Supreme Court’s conclusion that Title II’s remedy is congruent and proportional in the access-to-courts context relied heavily upon the nature of the constitutional right in issue and the States’ expansive due-process obligation to provide individuals with access to the courts.

. . . .

. . . [A] prisoner alleging an Eighth-Amendment violation confronts an exacting burden of showing that the prison official wantonly and willfully inflicted pain on the inmate. Chandler, Slip Op. at 3368-69. The Eighth Amendment regulates only a small slice of prison administrative conduct.

Title II of the ADA, on the other hand, purports to proscribe the exclusion of a “qualified,” disabled prisoner from participation in any “services, programs, or activities” of a public entity. Title II is not tailored to provide prophylactic protection of the Eighth-Amendment right; instead, it applies to any service, program, or activity provided by the prison, whether educational, recreational, jobtraining, work in prison industries, drug and alcohol counseling, or a myriad of other prison services, programs, and activities not affected by the Eighth Amendment.
My professor from Federal Courts class gave a brief talk about Lane the other day, and noted that it was a decision justified by the statesmanship of Justice Stevens; a statesmanship that restricted the reach of sovereign immunity and upheld the rule of law despite being confused jurisprudence. This may just illustrate that this is a partial victory for sovereign immunity opponents, as well as for ADA proponents, since the "as applied" analysis is very capable of going the other way.

I personally think this decision is right: the prison is a very different animal than the court. Although one may quibble with the current Eighth Amendment jurisprudence as applied to prison conditions, it is hard to say Miller was wrong about the ADA cutting a much wider swath than current constitutional law.

Rape in Cali 

Per Landon's post below on how it is now illegal in California to have sex with a corpse, I looked up California's current rape laws, which state as follows:
Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
. . . .
(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred. . . .
Cal. Pen. Code Sec. 261. My first thought was that this could be interpreted to include involuntary intercourse with a dead person. However, upon further research, People v. Sellers, 203 Cal. App. 3d 1042 (1988) already held that the crime of rape requires a live victim. The court stated:
We conclude, as a matter of law, that the crime of rape as defined in Penal Code section 261 requires a live victim. . . . Rape must be accomplished with a person, not a dead body. It must be accomplished against a person's will. A dead body cannot consent to or protest a rape, nor can it be in fear of immediate and unlawful bodily injury. Penal Code section 263 provides, "[the] essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape . . . ." A dead body has no feelings of outrage.
It seems that California has taken a giant leap forward in protecting the rights of the dead, and overturning over fifteen years of oppression. Governor Schwarzenegger can count on the dead vote come November.

Playing Politics 

I've been thinking a little bit lately about what it meas when something is "just politics." As reported by Allah, CBS has called the backlash against it "pure politics." Bush has in the past been accused of using terror alerts for "political" purposes. The list could go on.

When I think of the term "political" as a pejorative, I think of things that have nothing to do with the issue at hand, yet nevertheless influence the ultimate decision. For instance, picking candidates for state court judgeships based on social connections, being seen at the right places, and saying the right things, rather than from actual ability. If someone were to say "boy, that's way too political," then it would be because of the non-merit based hoops that must nevertheless be navagated in order to succeed.

In another way, "political" could mean something like "dishonest." For instance, describing the faked Bush memos themselves as "politically motivated" would imply that someone deliberately lied in order to generate bad sentiment toward the President. This is probably the sense that the charge of "political" is leveled at Bush and the terror alerts.

But it seems this term is overused in a pejorative way. For example, the backlash against CBS being politically motivated would be entirely correct: people gathered information and made an informed decision based on the facts, and desire a certain outcome. After all, the "political" can also be a descriptive term about legitimate collective decision making, as used when refering to Congress and the President as the "political" branches of government. When used pejoritively, but when it actually is quite apt, the word "politcal" seems like the loser whining that the decision is going against them. In fact, using "political" seems political, since it encourages a certain outsome (public skepticism) not based on the facts, but a general feeling of dishonesty about "politics."

So if Kerry ever says that Bush is using the Iraq war for political gain, stand up at say "of course he is! That's an important issue, and if he feels he did the right thing, then he wants people to feel the same way and let him keep his job." To not do so would be to simply play politics :)

Tuesday, September 14, 2004

Activists Hit the Wall 

The Fifth Circuit handed down its decision in McCorvey v. Hill, the case where the activist formerly known as Roe sought to reopen her case, which resulted in the landmark decision of Roe v. Wade thirty years ago. The court ruled that she could not persue her claim, though differed from the court below in that it decided on mootness grounds rather than ruling its just too damn old to reopen.

For those out of the abstention doctrine loop, mootness is one of several doctrines that says a court may not decide a case unless there is a live controverty at the time the case is heard. Since the laws at issue in Roe were repealed long ago, the court held that there can be no live controversy in this case since the result would not uphold the laws, but rather the case would simply be decided on hypothetical grounds. Of course, deciding such a case could lead to reinstating the laws, as it is currently unconstitutional to outlaw abortion, but these are issues that present complications I am not willing to explore right now.

However, the concurring judge, Edith Jones, makes an interesting point:
[T]he problem inherent in the Court’s decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey. No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey’s evidence could be aired.
Mootness, unlike the related doctrine of standing, is full of holes and exceptions. Roe itself was decided because of a mootness exception (after all, she had the baby before the Supreme Court decided the case, thus making her right to an abortion useless). Without going into the law of standing here, which may be tricky, it would seem that Judge Jones is entirely correct: The only way for a court to revisit Roe in its entirety would be for a state to outlaw abortion through its legislature, wait for someone to challenge the law on due process grounds, and then rule accordingly.

But in that case, also interestingly, abortion opponents would not be able to litigate the case the revisits the issues they hope to overturn (except indirectly through the government). This puts the state in the position of being a social activist: It must flout the law in order to bring about a substantive change at the Supreme Court level. Off the top of my head, I can't think of any other similar ruling completely shielded from subsequent Supreme Court review like this.

Food for thought.

Sensible Title Goes Here 

Dude. Check this out.

Governor Arnold Schwarzenegger just signed a bill that officially makes necrophilia a criminal offense in California, punishable by up to 8 years in the clink. Apparently, until last week, it was perfectly legal in the state of California to have sex with a dead body. I particularly like the photo of the Governator in this article. However, I still have to say, of all of the outrageous facts in this article, the one that tops them all remains the same -- Arnold Schwarzenegger is the Governor of California.

Baude's K Dilemma 

Will Baude posts on a contracts conundrum: "Imagine that I did pay protection money to the mob, but they beat me up anyway and breached the contract. Under the no-consideration theory, I wouldn't be able to sue the mob heavies for breach, and if the police weren't interested in prosecuting, I'd just be out of luck. If this is justice, it is very rough indeed."

For those unfamiliar with contract law, "consideration" is a prerequisite for legally enforceable contracts: there must be a bargained-for exchange of things of value, not merely a promise to do something for nothing. Baude's proposal comes in response to a case that held refraining from doing legal actions was adequate consideration for a promise of a future money payment. Baude's proposal: why not allow refraining from illegal actions to be consideration as well?

Baude is correct, that in his hypo under a no-consideration theory he would not be able to sue for breach of contract. However, his premise rests on the theory that refraining from performing illegal acts, like refraining from legal acts, has value. But in contract law there is also another doctrine called the "pre-existing duty rule," which is basically that somebody promising to perform something he had a legal obligation to perform anyway is not adequate consideration, classically arising in contract modifications where one party isn't required to do anything new.

Staying purely in the realm of contract law, allowing abstention from illegal acts to constitute consideration for a return promise would essentially allow people to profit from a contract without doing anything they were not bound to do anyway. Everyone has a legal duty to not commit torts against others. Seen another way, finding consideration could conceivably allow the mobsters in the hypo to collect payment in a court of law should the promisor unwisely breach. If we believe in the consideration requirement at all, this should not be so. Aside from other policy reasons, contracts should not be formed to provide no services that the party is not already bound to perform.

Also, the hypo might be resolved on a theory of equitable restitution: The payment could be recovered as if the contract had never been made.

(I don't want to even think how many spelling errors are in this post.)

Sunday, September 12, 2004


'Bout time I updated the ole Blog Roll I reckon' . . .

Rathergate Evidence Issues 

Powerline Blog posts here a question from an intrepid reader who asks if the CBS documents would be admissible in court. Powerline responds: "Based on what CBS has released so far, they're not even in the ballpark." I agree, however I cannot resist bringing up my favorite of all hearsay exceptions, the Ancient Document exception! Federal Rule of Evidence 803(17) (and, I imagine, many state evidence codes) reads as follows:
Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.
Apart from something over twenty years old being considered "ancient," I find this hearsay exception interesting because it basically says that things found where they should be, and which are old, can be believed. Although I don't think this is met here, it is probably the best way to go about admitting the documents over a hearsay objection. This rule should also be read with FRE 901(8), concerning authentication:
Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
Thus, if documents are where they should be, they can likely be admitted without anyone with firsthand knowledge of the document's creation testifying about it. CBS has failed to even try to meet this burden so far by not telling us where the documents were found, not producing an original for dating purposes, and of course the whole Microsoft Word thing.

It is not inconceivable that with the right information about where the documents were found that CBS could get the documents authenticated since this is a very low threshhold to meet, but the hearsay exception would need to be decided by a judge (under the Federal Rules) by a preponderance of the evidence (i.e., that the documents are over twenty years old, and that their condition indicates reliabilty). This is possible, but again CBS would have to bring forward a lot more than they already have, as well as some pretty conclusive evidence rebutting the whole MS Word angle.

There is another issue raised since the documents are not originals: the "best evidence" rule (FRE 1002 and 1003). This rule basically says that a copy may generally be admitted instead of an original unless "a genuine question is raised as to the authenticity of the original," which seems to be pretty plain here. IMHO, the best evidence rule is a clearer bar to admissibility than hearsay or authentication, just because CBS might be able to raise a genuine issue of fact about reliabilty from where the documents were found, but almost certainly could never produce an original to rebut the genuine issues raised about its authenticity.

Freedom of Speech v. Intellectual Property 

I may have drawn this strained analogy before, but when we talk about issues of intellectual property, society at large is more inclined to find a sort of legally protected interest inherent in the design, while when we talk about freedom of speech, instinct leads people away from an individual interest and toward a societal one. Why such a divide? Mark Lemley and Eugene Volokh have pondered the difference between First Amendment cases and copyright cases in the context of preliminary injunctions in this article, with the former injuctions rarely granted while the latter virtually always.

There is indeed a difference between the property interests we assign to each, and the best example that comes to mind is in news gathering. Recently, Power Line Blog has taken up the cause against CBS over the apparently forged documents CBS used in a story doubting President Bush's National Guard Service record. That blog has, just about, announced the death of big media, and the rise of the blog as a legitimate information source.

To the extent that it is even partially true, this marks a huge divide from copyright law, which seeks to entrench traditional media sources and distribution schemes, based entirely on an economic rationale. Following a similar rationale from copyright law in free speech law, the result would seem pretty distateful. Here's a brief illustration of what I mean. In 1918, the Supreme Court in INS v. AP found, on unfair competition grounds, that the International News Service, to the extent it took news stories from the AP and distributed them as their own. Similar to a copyright rationale, the Court held that to encourage news gathering, there should be some return on the gatherer's investment of time and resources. This result, taken to one extreme, would mean that professional news gathering agencies (for simplicity, "Big Media") could be granted an artificial monopoly over their stories, with any non-commercial dissemination being an infringment of that right. The justification would be that this would encourage an army of full-time reporters, that otherwise wouldn't exist, to disseminate news that otherwise may never be disseminated. In other words, Big Media's profit generates more and better news for everyone.

I doubt many people would be on board with this program. After all, even INS v. AP didn't go this far in creating protectoin for Big Media to exist even against its competitors for profit. Quite simply, everyone can see the benefit of free news dissemination: Blogs are essentially an army of people gathering news for free, a commercial market still exists, that market will likely exist for a long time, and the societal benefit of a free flow of information is apparent.

Then why are we so loathe to feel the same way about copyright law? We have indeed allowed big media to exist on the rationale that if people can "get it for free," then no one will create and distribute music, movies, television, etc. To some extent, this may have been more true in the past--there was no comparable free distribution scheme that was as effective as, say, record labels; fixed costs may have been high for initial recording/film making that would have been severely undercut by the unfair competition of piracy; and the moral desert in artistic works, rather than raw facts, leads to intuitive ownership more quickly than for news. However, the same could be said for the news media as well, if not in the same degree--newspaper publishing incurs a high fixed cost for publishers, travel and time crunches make the threat of a scoop that much more dangerous to the market, and the "sweat of the brow" approach does not entirely eviscerate the moral desert rationale.

Moreover, technology has significantly lowered the fixed costs for industry. Digital recording, both in music and movies, have enabled small companies or even individuals to create high-quality products for a fraction of the cost as the past. The abilty to have an army of free artists, just like the internet enables blogs to be a free information service for the world, in my opinion severely undercuts the Big Media protectionist rationale behind strong copyright protection. The differences are not so big as popular myth would have us believe.

If we regard artistic works as our cultural right, as we already regard information, we should begin to move in the direction of a free society. The first step is to get the public to ask the question I asked, and wonder why we treat certain information very differently from other information, especially when our instinct for free speech is so strong and holds up in this age of easy dissemination, and strong intellectual property protection has become an archaic holdover justifying market protectionism.

To be sure, there should be some protection for intellectual property, as there is some protection for unfair competition in news dissemination, but if we are to truly find copyright's balance, we should recognize what is on both sides, not just what Big Media wants.

Saturday, September 11, 2004

Buggy Whips 

The recording industry is up in arms over technology that can record satelite and internet radio broadcasts digitally. From my vantage, this is pure market protectionism, and the law should be moving away from the protection of archaic delivery services.

Of general interest may be the beginning of Larry Lessig's Free Culture, discussing the stifling of FM radio development for similar protectionist reasons.

Friday, September 10, 2004

Legal Dead Zone 

It looks like Eugene Volokh is still able to blog up a storm, but for us law students it seems like the legal world comes to a halt when the Supreme Court isn't in session. That is, of course unless you are a new 1L, I guess, like over at PG's new solo blog.

John F. Kerry 

For me, the bottom line is that George W. Bush spends too much money, but I can live with that for another four years (optomistic that spending will be a bit more in line with the party) because of two major reasons: 1) I approve of Bush's handling of the War on Terror, and 2) I don't feel he is responsible for the bad economy, and the economy is getting better generally. Thus, while I would prefer a better Republican candidate, I can deal with this.

But even if I were on the fence, it seems pretty apparent that John Kerry is a horrible candidate. First, I have no sense of how Kerry would actually respond to a terrorist attack, but the best he would do, from what he's said, is the same thing Bush would do: Treat it as an act of war, and take the fight to the enemy. But there is also the worst case scenario: Perhaps talking tough on terror, but folding to European pressure. So even if he were to take a stance on terror, the best he could do would be a draw with Bush, so this does not compell me to vote for him. That said, his endless waffling is a problem, and contributes to my opinion of him as a problem finder (which is easy: "I would have gotten France's support!," "I would have had a better plan!") rather than a problem solver, or at least not a better problem solver fundamentally than Bush.

I also see Vietnam service as more of an issue for Kerry than for Bush, not just because he touts it as a possitive character trait (falsely, imho), but because he also uses it as a substantive answer to questions about national defense and patriotism. Why would he fight a better war on terror? Vietnam! Why would he spend the appropriate amount on the military despite never having done so in the past? Vietnam! How can he explain his troubling anti-war views involving exagerating troop abuses? Shutup, he was in Vietnam! Before I can even begin to believe his campaign talking points, I'd need three questions answered: How does he reconcile his vehement anti-war views involving some fabrications with his current use of Vietnam service without it being pure opportunism? How won't he release his records to rebut the Swift Vets (especially having retracted his statements about Cambodia and his first Purple Heart) unless he has something to hide? and Why does a thirty-year old war mean he will be a better Commander in Chief? He hasn't answered those, and I suspect he won't.

Lastly, although pundits are suggesting that Kerry run on a domestic agenda, I don't think this is his strength. First, he has already promised a health care plan without saying he will pay for it through taxes, which is a problem since without payment it is an empty promise. Second, I generally think that the president is not responsible for creating jobs, so I don't buy that he can or would actually do so in a greater amount than what is happening now under Bush.

That's all I've got on this, so I encourage everyone to vote for four more years.

Wednesday, September 08, 2004

Blogger Quibbles 

Seeing as how I've been trying to publish my blog for an hour now, it may be time for some Blogger quibbles as well . . .

Typepad Quibbles 

Having finished my free trial over at TypePad, I've decided that if I want to move up to a higher level blogging tool, TypePad is not for me. In my opinion, it is to blogging what AOL is to internet--fine for those who either cannot grasp how basic html works or have zero time to figure it out. First, the good:
And now, the bad:
In the end, that was enough to drive me away. To enable any features to make it bearable would have cost more per month than the basic account. For now, I'll stick with BlogSpot unless and until I switch to Movable Type.

Monday, September 06, 2004

Labor Day 

Toiling away in the Law Review office today. It's just as well; it is hot outside, and I'm sick anyway.

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