Dearest A,
Democracy rocks even harder when your guy wins the presidency.
We poured into the streets of D.C. last night after the networks called the election for Obama. We danced in the intersection of 14th and U Streets. We marched down 16th Street to the White House. We sang the "Star Spangled Banner." We chanted and cheered and high-fived passersby.
The city yelped with joy until the wee hours of the morning.
I feel blessed to be alive at this moment.
Love,
Sammy
Wednesday, November 5, 2008
Tuesday, November 4, 2008
Election Day!
Dearest A,
I voted a week ago, but it warms my cynical little heart to see so many people standing in line to cast their ballots on election day. Democracy rocks.
Love,
Sammy
I voted a week ago, but it warms my cynical little heart to see so many people standing in line to cast their ballots on election day. Democracy rocks.
Love,
Sammy
Friday, October 31, 2008
Is Palin a Realist?
Dearest A,
Perhaps the Republican vice-presidential candidate has been reading some crit theory in her spare time, but isn't she echoing some left-wing thoughts about the First Amendment here:
"If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations," Palin told host Chris Plante, "then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media."
Legal realists have a similar theory, arguing that the "marketplace of ideas" is actually a sham because the megaphones wielded by powerful interests -- like the media -- are able to shout down everyone else.
Maybe Georgetown Law should hire her.
Love,
Sammy
Perhaps the Republican vice-presidential candidate has been reading some crit theory in her spare time, but isn't she echoing some left-wing thoughts about the First Amendment here:
"If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations," Palin told host Chris Plante, "then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media."
Legal realists have a similar theory, arguing that the "marketplace of ideas" is actually a sham because the megaphones wielded by powerful interests -- like the media -- are able to shout down everyone else.
Maybe Georgetown Law should hire her.
Love,
Sammy
Wednesday, October 29, 2008
Why Lawyers Blog
Dearest A,
Andrew Sullivan wrote a very fine essay in The Atlantic the other day -- Why I Blog. It's a paean of sorts to the immediacy of blog-writing: "more free-form, more accident-prone, less formal, more alive. It is, in many ways, writing out loud."
I love this idea. I also wonder if it could possibly apply to lawyers who blog.
Lawyers are diligent and careful creatures, not given to such moments of whim as "writing out loud." To be a very good lawyer, you must read cases over and over to ensure you're interpreting them correctly. You must write over and over to ensure that you're not overstating or misstating or understating concepts. You must think over and over to ensure you've considered every possible consequence of a decision.
This is not easy work. And I wonder if any lawyer can blog effectively without doing all of this reading and writing and thinking. And all this reading and writing and thinking takes time.
So how do we reconcile the nature of lawyers with the nature of blogs?
Much love,
Sammy
Andrew Sullivan wrote a very fine essay in The Atlantic the other day -- Why I Blog. It's a paean of sorts to the immediacy of blog-writing: "more free-form, more accident-prone, less formal, more alive. It is, in many ways, writing out loud."
I love this idea. I also wonder if it could possibly apply to lawyers who blog.
Lawyers are diligent and careful creatures, not given to such moments of whim as "writing out loud." To be a very good lawyer, you must read cases over and over to ensure you're interpreting them correctly. You must write over and over to ensure that you're not overstating or misstating or understating concepts. You must think over and over to ensure you've considered every possible consequence of a decision.
This is not easy work. And I wonder if any lawyer can blog effectively without doing all of this reading and writing and thinking. And all this reading and writing and thinking takes time.
So how do we reconcile the nature of lawyers with the nature of blogs?
Much love,
Sammy
Thursday, October 9, 2008
The Politics of Copyright
Dearest A,
Recent news out of the political world, and the upward polling trends for Barack Obama, have set my heart all aflutter. But there's a legal issue popping up in this election that's also near and dear to me -- copyright law.
Apparently, many, many artists and others are ticked that Sen. McCain is using their music or other creative works in support of his presidential campaign.
This raises an interesting issue: Do any of these folks have a valid copyright infringement claim?
They damned well might. The copyright statute doesn't have any safe havens for uses of a creative work in a political campaign. The copyright law does carve out some "fair uses" that can be made of a creative work, like in news reporting, teaching, or research, but makes no specific mention of campaigns.
The McCain camp has a good argument that its uses qualify as "fair use" generally. Courts look at factors such as whether the use is of a commercial nature when making this determination, but the fact that the McCain campaign is generally "non-commercial" doesn't necessarily save it. First, if these works were used in ads to raise money, then the commercial nature of the use is definitely an issue. Second, a court will also look at how much of the songs the campaigns use, and whether the material they use is really "the heart" of the work -- on both of these questions, McCain's could be in hot water.
All in all, it's probably best if the McCain campaign got licenses to use these songs -- which it seems like they have not done -- rather than litigate these complicated issues in court.
Love,
Sammy
Recent news out of the political world, and the upward polling trends for Barack Obama, have set my heart all aflutter. But there's a legal issue popping up in this election that's also near and dear to me -- copyright law.
Apparently, many, many artists and others are ticked that Sen. McCain is using their music or other creative works in support of his presidential campaign.
This raises an interesting issue: Do any of these folks have a valid copyright infringement claim?
They damned well might. The copyright statute doesn't have any safe havens for uses of a creative work in a political campaign. The copyright law does carve out some "fair uses" that can be made of a creative work, like in news reporting, teaching, or research, but makes no specific mention of campaigns.
The McCain camp has a good argument that its uses qualify as "fair use" generally. Courts look at factors such as whether the use is of a commercial nature when making this determination, but the fact that the McCain campaign is generally "non-commercial" doesn't necessarily save it. First, if these works were used in ads to raise money, then the commercial nature of the use is definitely an issue. Second, a court will also look at how much of the songs the campaigns use, and whether the material they use is really "the heart" of the work -- on both of these questions, McCain's could be in hot water.
All in all, it's probably best if the McCain campaign got licenses to use these songs -- which it seems like they have not done -- rather than litigate these complicated issues in court.
Love,
Sammy
Tuesday, August 12, 2008
Habeas and Sentencing
Dearest A,
A military panel sentenced Salim Hamdan to only 5 1/2 years, a far cry from the 30-to-life asked for by the government.
That means, five months from now, he will have served his sentence.
And there's a very good chance that, five months from now, absolutely nothing will change. Mr. Hamdan will still be held in Guantanamo Bay as an enemy combatant, which the Bush Administration contends gives them the right to hold enemy combatants (i.e. terrorists) until the War on Terror ends (i.e. indefinitely).
Undoubtedly, Mr. Hamdan will then petition the US courts for habeas relief, as nearly every other detainee at Guantanamo Bay has done. Here's my question: does the fact that Mr. Hamdan has served his sentence make his habeas petition stronger?
I say yes. Granted, the justifications for criminal punishment and for holding prisoners of war, or enemy combatants, are markedly different, but they do overlap in one area -- deterrence.
One of the purposes of punishment is to prevent individuals from committing crime, now and in the future. Similarly, countries hold prisoners of war to prevent them from returning to the battlefield. In both cases, the government is attempting to prevent the individual from acting in a way contrary to the government's interests.
By imposing this sentence, a military jury has adjudged Mr. Hamdan's 5 1/2 years in Guantanamo Bay as sufficient punishment for his acts. One of the goals of that punishment is to deter Mr. Hamdan from further supporting terrorism in the future. The government's decision to continue detaining him as an enemy combatant -- because the government believes he might return to his terrorist ways -- is therefore in direct contradiction to the military panel's determination.
Just imagine if a jury sentenced a man to 5 1/2 years in prison, but then the warden refused to let him go because he believed the prisoner was still a danger to society. The warden doesn't get to make that call. Neither should the Department of Defense.
Love,
Sammy
A military panel sentenced Salim Hamdan to only 5 1/2 years, a far cry from the 30-to-life asked for by the government.
That means, five months from now, he will have served his sentence.
And there's a very good chance that, five months from now, absolutely nothing will change. Mr. Hamdan will still be held in Guantanamo Bay as an enemy combatant, which the Bush Administration contends gives them the right to hold enemy combatants (i.e. terrorists) until the War on Terror ends (i.e. indefinitely).
Undoubtedly, Mr. Hamdan will then petition the US courts for habeas relief, as nearly every other detainee at Guantanamo Bay has done. Here's my question: does the fact that Mr. Hamdan has served his sentence make his habeas petition stronger?
I say yes. Granted, the justifications for criminal punishment and for holding prisoners of war, or enemy combatants, are markedly different, but they do overlap in one area -- deterrence.
One of the purposes of punishment is to prevent individuals from committing crime, now and in the future. Similarly, countries hold prisoners of war to prevent them from returning to the battlefield. In both cases, the government is attempting to prevent the individual from acting in a way contrary to the government's interests.
By imposing this sentence, a military jury has adjudged Mr. Hamdan's 5 1/2 years in Guantanamo Bay as sufficient punishment for his acts. One of the goals of that punishment is to deter Mr. Hamdan from further supporting terrorism in the future. The government's decision to continue detaining him as an enemy combatant -- because the government believes he might return to his terrorist ways -- is therefore in direct contradiction to the military panel's determination.
Just imagine if a jury sentenced a man to 5 1/2 years in prison, but then the warden refused to let him go because he believed the prisoner was still a danger to society. The warden doesn't get to make that call. Neither should the Department of Defense.
Love,
Sammy
Thursday, August 7, 2008
Because We Have the Rule of Law, That's Why
Dearest A,
It's taken me a little while, but I've formulated a response to your thoughtful question. Why do we cringe when our jurists act like politicians? Because our whole system of government depends on a belief -- though it may be fictitious -- that judges are impartial.
But it's all a farce, you say? Might makes right, and why pretend any different?
Because the rule of law is a useful fiction, and one that's probably kept our society from tearing itself apart at the seams. Like many others have.
The rule of law is an opiate of the people. It makes citizens believe that something -- other than military muscle -- governs their society. And it makes citizens less likely to turn to armed uprisings as the solution to the problems.
In our society, the guardians of the rule of law are jurists. And if we suddenly lost faith in the neutral application of laws -- if we believed that only might made right, and that judges were part of that system of oppression -- then the fragile ties that bind us together might come undone.
The rule of law is not coherent. It's not reasonable. It's not even really a rule. But a firm belief in it has held our society together for the last 200 years. I think that's a useful purpose, in and of itself.
Love,
Sammy
It's taken me a little while, but I've formulated a response to your thoughtful question. Why do we cringe when our jurists act like politicians? Because our whole system of government depends on a belief -- though it may be fictitious -- that judges are impartial.
But it's all a farce, you say? Might makes right, and why pretend any different?
Because the rule of law is a useful fiction, and one that's probably kept our society from tearing itself apart at the seams. Like many others have.
The rule of law is an opiate of the people. It makes citizens believe that something -- other than military muscle -- governs their society. And it makes citizens less likely to turn to armed uprisings as the solution to the problems.
In our society, the guardians of the rule of law are jurists. And if we suddenly lost faith in the neutral application of laws -- if we believed that only might made right, and that judges were part of that system of oppression -- then the fragile ties that bind us together might come undone.
The rule of law is not coherent. It's not reasonable. It's not even really a rule. But a firm belief in it has held our society together for the last 200 years. I think that's a useful purpose, in and of itself.
Love,
Sammy
Monday, July 28, 2008
Imitation Is the Sincerest Form of Flattery
Dearest A,
Maybe I was completely wrong in my assessment of the throw-away legal value of Justice Scalia's remarks in Boumediene.
In the most recent round of briefing in the consolidated Guantanamo cases before the D.C. District Court, government lawyers are parroting the silver-tongued justice. "The costs of an erroneous determination against the Government -- which could ultimately result in the deaths of more American soldiers or civilians, either on the field of battle or from terrorist attacks -- are grave." (not available online)
Not even a cite to the original wordsmith. For shame, government attorneys. For shame.
Love,
Sammy
Maybe I was completely wrong in my assessment of the throw-away legal value of Justice Scalia's remarks in Boumediene.
In the most recent round of briefing in the consolidated Guantanamo cases before the D.C. District Court, government lawyers are parroting the silver-tongued justice. "The costs of an erroneous determination against the Government -- which could ultimately result in the deaths of more American soldiers or civilians, either on the field of battle or from terrorist attacks -- are grave." (not available online)
Not even a cite to the original wordsmith. For shame, government attorneys. For shame.
Love,
Sammy
Wednesday, July 23, 2008
It's Business Time
Sammy,
I agree that Scalia is clearly writing to the Sean Hannity crowd when he writes that the ruling "will almost certainly cause more Americans to be killed" -- especially when DC v. Heller almost certainly will cause more Americans to be killed, and Scalia is completely and utterly untroubled by it.
Here's a more important question that I've had rattling around in my brain: why are we still pretending that this system is anything other than rigged? Justice Scalia thinks that habeas corpus is not only dispensable but actively malign? Conservative legal types -- totally silent during the Clinton presidency -- are now convinced that the President has "near dictatorial" powers? There are a thousand other examples (torture, wiretapping, etc.) of Republican lawyers making patently absurd legal arguments to justify their party's horrifying behavior.
Why do we pretend that these people are supposed to be serious legal scholars, and why do we act shocked when they act otherwise? I'm coming around to the Seidman school of thought, that the system we've built -- the rule of law, and all that entails -- is only ever as good as those who are in power to implement it. This is not a new opinion. And I'm not alone in thinking this.
One of the major political parties in this country exploits fear of gays, blacks, and non-Christians to advance its agenda of tax cuts and gutting of the regulatory system. It has a very well-funded PR arm, which employs (among other people) a number of lawyers. Let's stop pretending that any kind of professional/institutional/patriotic obligation will keep these lawyers from doing the things that they are paid to do.
- A
I agree that Scalia is clearly writing to the Sean Hannity crowd when he writes that the ruling "will almost certainly cause more Americans to be killed" -- especially when DC v. Heller almost certainly will cause more Americans to be killed, and Scalia is completely and utterly untroubled by it.
Here's a more important question that I've had rattling around in my brain: why are we still pretending that this system is anything other than rigged? Justice Scalia thinks that habeas corpus is not only dispensable but actively malign? Conservative legal types -- totally silent during the Clinton presidency -- are now convinced that the President has "near dictatorial" powers? There are a thousand other examples (torture, wiretapping, etc.) of Republican lawyers making patently absurd legal arguments to justify their party's horrifying behavior.
Why do we pretend that these people are supposed to be serious legal scholars, and why do we act shocked when they act otherwise? I'm coming around to the Seidman school of thought, that the system we've built -- the rule of law, and all that entails -- is only ever as good as those who are in power to implement it. This is not a new opinion. And I'm not alone in thinking this.
One of the major political parties in this country exploits fear of gays, blacks, and non-Christians to advance its agenda of tax cuts and gutting of the regulatory system. It has a very well-funded PR arm, which employs (among other people) a number of lawyers. Let's stop pretending that any kind of professional/institutional/patriotic obligation will keep these lawyers from doing the things that they are paid to do.
- A
Back to Business
Dearest A,
We've both been busy as of late, due to our jobs in the non-digital world. Good thing no one reads our blog! But there's been a lot of law made over the last few months. Most notably, a certain case involving certain people held against their will at a certain tropical location. And I ain't talking about Temptation Island.
There's been a lot of ink spilled about Guantanamo already, and I don't want to rehash old legal arguments. But there's one little tidbit that truly interests me -- Justice Scalia's statement that the decision "will almost certainly cause more Americans to be killed."
First off, that's not true as a legal matter. The decision did not set all the detainees at Guantanamo free. It simply gave federal judges the ability to take a peek at the basis for the detention of these men. And I'm pretty darned sure that no federal judge is going to be sending KSM back to Afghanistan anytime soon.
Regardless, the DoD has been doing a pretty darned good job of letting dangerous detainees go without any help from the courts.
But my main point is this -- who the hell was Scalia writing that line for? Certainly not as precedent for future legal briefs since, as I noted above, it's not legally valid and, as far as legal opinions go, borders on the histrionic.
It was clearly meant for the Rush Limbaugh types, the red-staters who hear that line on TV and grin in agreement.
Is that the proper audience for a dissenting opinion? We've got the Executive and Legislative branches already crawling all over each other to win political points. Is there some reason why the Judiciary shouldn't be doing the same? My gut tells me no, but I can't think of any coherent reason why not.
Love,
Sammy
We've both been busy as of late, due to our jobs in the non-digital world. Good thing no one reads our blog! But there's been a lot of law made over the last few months. Most notably, a certain case involving certain people held against their will at a certain tropical location. And I ain't talking about Temptation Island.
There's been a lot of ink spilled about Guantanamo already, and I don't want to rehash old legal arguments. But there's one little tidbit that truly interests me -- Justice Scalia's statement that the decision "will almost certainly cause more Americans to be killed."
First off, that's not true as a legal matter. The decision did not set all the detainees at Guantanamo free. It simply gave federal judges the ability to take a peek at the basis for the detention of these men. And I'm pretty darned sure that no federal judge is going to be sending KSM back to Afghanistan anytime soon.
Regardless, the DoD has been doing a pretty darned good job of letting dangerous detainees go without any help from the courts.
But my main point is this -- who the hell was Scalia writing that line for? Certainly not as precedent for future legal briefs since, as I noted above, it's not legally valid and, as far as legal opinions go, borders on the histrionic.
It was clearly meant for the Rush Limbaugh types, the red-staters who hear that line on TV and grin in agreement.
Is that the proper audience for a dissenting opinion? We've got the Executive and Legislative branches already crawling all over each other to win political points. Is there some reason why the Judiciary shouldn't be doing the same? My gut tells me no, but I can't think of any coherent reason why not.
Love,
Sammy
Wednesday, June 11, 2008
Can the Constitution be Unconstitutional?
No.
True, there are places where the Constitution does not live up to our moral ideals (slavery), or ideals about how a nation's government should be structured (slavery, the disproportionate representation afforded by the Senate), or our egalitarian and utilitarian principles (slavery, the electoral college), but it is still the Constitution.
More importantly, the force that shaped Constitution 200 years ago is exactly the force that keeps the electoral college going today: the limits of the possible. Without disproportionate representation, the small states don't join, there is no United States, and there is no Constitution.
(Similar analogy: unions would be better if there wasn't such an emphasis on seniority rights, but without seniority rights, the older workers wouldn't have joined, and there would be no union.)
While it is absurd, and (kind of) a violation of the one-person, one-vote standard we apply to states, the electoral college was a necessary precondition to the Constitution and the form of government we have today. It's tempting to write it off as a historical anomaly ("Oh, it was 1787, it was the first time anyone had done this, they were all drunk ..."), but if the union was forming today, the small states would still want some sort of assurance that their voices would be heard in our democracy.
I'm not excusing the ridiculousness of the system and its 5% error rate. I'm just saying that every time you curse the electoral college for giving us George W. Bush, you should thank it for giving us the First Amendment, too.
- A
True, there are places where the Constitution does not live up to our moral ideals (slavery), or ideals about how a nation's government should be structured (slavery, the disproportionate representation afforded by the Senate), or our egalitarian and utilitarian principles (slavery, the electoral college), but it is still the Constitution.
More importantly, the force that shaped Constitution 200 years ago is exactly the force that keeps the electoral college going today: the limits of the possible. Without disproportionate representation, the small states don't join, there is no United States, and there is no Constitution.
(Similar analogy: unions would be better if there wasn't such an emphasis on seniority rights, but without seniority rights, the older workers wouldn't have joined, and there would be no union.)
While it is absurd, and (kind of) a violation of the one-person, one-vote standard we apply to states, the electoral college was a necessary precondition to the Constitution and the form of government we have today. It's tempting to write it off as a historical anomaly ("Oh, it was 1787, it was the first time anyone had done this, they were all drunk ..."), but if the union was forming today, the small states would still want some sort of assurance that their voices would be heard in our democracy.
I'm not excusing the ridiculousness of the system and its 5% error rate. I'm just saying that every time you curse the electoral college for giving us George W. Bush, you should thank it for giving us the First Amendment, too.
- A
Why Do We Make Elections So Complicated?
Dearest A,
My random thought for a Wednesday morning: Does the electoral college violate the one person-one vote principle laid out in Reynolds v. Sims?
Admittedly, I haven't read that case since Con Law I, and I took Election Law pass-fail. So I'm no expert. But here's what I'm thinking ...
The number of each state's electors equals the number of seats it has in the House of Representatives plus two (representing two Senators). We here in the District have three electors, equivalent to the number allotted to the smallest states, even though we ain't got no Senators, and no real congressmen (but that's another post for another day).
Since legislative districts are supposed to be allotted according to the one person-one vote principle, the number of electors equivalent to congressmen should be OK. It's the fact that we're using Senators -- which are distributed, Ark-like, by twos -- that makes me think we might be violating the principle. Doesn't this dampen the impact of the most populous states? Doesn't it give less-populous states more power?
There's also the problem of block-voting by state. The people in New York who vote Republican and the people in Texas who vote Democrat essentially aren't getting any votes when it counts. So we end up with this bizarre phenomenon of candidates winning the popular vote, but losing the election.
My final thought for the day: Can a practice mandated by the Constitution be UNCONSTITUTIONAL?
There. I just blew my own mind.
Love,
Sammy
My random thought for a Wednesday morning: Does the electoral college violate the one person-one vote principle laid out in Reynolds v. Sims?
Admittedly, I haven't read that case since Con Law I, and I took Election Law pass-fail. So I'm no expert. But here's what I'm thinking ...
The number of each state's electors equals the number of seats it has in the House of Representatives plus two (representing two Senators). We here in the District have three electors, equivalent to the number allotted to the smallest states, even though we ain't got no Senators, and no real congressmen (but that's another post for another day).
Since legislative districts are supposed to be allotted according to the one person-one vote principle, the number of electors equivalent to congressmen should be OK. It's the fact that we're using Senators -- which are distributed, Ark-like, by twos -- that makes me think we might be violating the principle. Doesn't this dampen the impact of the most populous states? Doesn't it give less-populous states more power?
There's also the problem of block-voting by state. The people in New York who vote Republican and the people in Texas who vote Democrat essentially aren't getting any votes when it counts. So we end up with this bizarre phenomenon of candidates winning the popular vote, but losing the election.
My final thought for the day: Can a practice mandated by the Constitution be UNCONSTITUTIONAL?
There. I just blew my own mind.
Love,
Sammy
Wednesday, June 4, 2008
Defense Wins Championships
While it's true that a Democratic president would likely be maintaining the status quo with regard to the Supreme Court personnel, it's also true that appointing justices is not the only way a new president could impact the Court.
First, a Democratic-controlled legislature and a Democratic executive could work to right the wrongs of the Supreme Court -- e.g., the "Ledbetter" Fair Pay Act -- and reverse some of the Court's more egregious decisions.
Second, a Democratic president could act unilaterally to end the constitutional violations that the Supreme Court refused to fix, such as overturning executive orders and closing Guantanamo.
Third, a Democratic executive would have a lot of power to change to policies of the administrative state, which would have the effect of removing many thorny issues from the Supreme Court's review -- for example, the legal challenge over the EPA refusing to allow California to regulate emissions would simply become moot with a change in EPA policy.
Sure, sure, it would be playing defense. But what's so bad about defense?
- A
First, a Democratic-controlled legislature and a Democratic executive could work to right the wrongs of the Supreme Court -- e.g., the "Ledbetter" Fair Pay Act -- and reverse some of the Court's more egregious decisions.
Second, a Democratic president could act unilaterally to end the constitutional violations that the Supreme Court refused to fix, such as overturning executive orders and closing Guantanamo.
Third, a Democratic executive would have a lot of power to change to policies of the administrative state, which would have the effect of removing many thorny issues from the Supreme Court's review -- for example, the legal challenge over the EPA refusing to allow California to regulate emissions would simply become moot with a change in EPA policy.
Sure, sure, it would be playing defense. But what's so bad about defense?
- A
Let's Not Get Our Hopes Up ...
Dearest A,
Barack Obama has finally secured the nomination, Hillary Clinton's refusal to concede notwithstanding.
What does this mean for us lawyer-types? Two words: Supreme Court.
Those of us who do not belong to the Federalist Society are quite worried about our beloved Court. The decisions of the last terms were, on the whole, stunning. The backtracking on school desegregation in Seattle/Louisville. The imposition of unreasonable deadlines on people completely unaware that their employer is discriminating against them in Ledbetter. And, perhaps most disappointing of all, Justice Kennedy's patronizing depiction of the women who choose to have abortions in Gonzales.
Here's the funny thing: the best we can hope for is to keep the status quo. Barring some disaster befalling a younger, conservative member of the Court, the only seats likely to open up in the new term are those held by the "liberal" Justices Stevens, Ginsburg, and maybe Souter. We need a President Obama to keep from turning a conservative Court even more to the right. But we can't expect a shift back to the center anytime soon.
Love,
Sammy
Barack Obama has finally secured the nomination, Hillary Clinton's refusal to concede notwithstanding.
What does this mean for us lawyer-types? Two words: Supreme Court.
Those of us who do not belong to the Federalist Society are quite worried about our beloved Court. The decisions of the last terms were, on the whole, stunning. The backtracking on school desegregation in Seattle/Louisville. The imposition of unreasonable deadlines on people completely unaware that their employer is discriminating against them in Ledbetter. And, perhaps most disappointing of all, Justice Kennedy's patronizing depiction of the women who choose to have abortions in Gonzales.
Here's the funny thing: the best we can hope for is to keep the status quo. Barring some disaster befalling a younger, conservative member of the Court, the only seats likely to open up in the new term are those held by the "liberal" Justices Stevens, Ginsburg, and maybe Souter. We need a President Obama to keep from turning a conservative Court even more to the right. But we can't expect a shift back to the center anytime soon.
Love,
Sammy
Friday, May 30, 2008
Backdoor Gay Rights
Hillary didn't seem to gain much traction with her "Vote for me because Obama will die" argument, thank goodness. I'm starting to have a new appreciation for the intelligence of the American people, who haven't yet been tricked by the "Obama = Jesse Jackson" or the Obama's not a Muslim "as far as I know" comments. Go America!
But on to other topics ... what are your thoughts on David Paterson's executive directive to recognize gay marriages from other states? I think this is pretty ingenious, for two reasons: 1) it avoids the anti-majoritarian arguments of those who think these decisions should be made by elected officials (while actually avoiding the horrors of legislative decision-making), and 2) it could bring about the sky didn't fall effect of the Massachusetts gay marriage decision.
If New York begins to recognize gay marriages performed in other jurisdictions, it's only a matter of time before residents will reconcile themselves to gay marriage in their own state.
But on to other topics ... what are your thoughts on David Paterson's executive directive to recognize gay marriages from other states? I think this is pretty ingenious, for two reasons: 1) it avoids the anti-majoritarian arguments of those who think these decisions should be made by elected officials (while actually avoiding the horrors of legislative decision-making), and 2) it could bring about the sky didn't fall effect of the Massachusetts gay marriage decision.
If New York begins to recognize gay marriages performed in other jurisdictions, it's only a matter of time before residents will reconcile themselves to gay marriage in their own state.
Friday, May 23, 2008
In Soviet Russia, Shark Jumps You!
In the time since Hillary Clinton has been mathematically eliminated from winning the Democratic nomination, her candidacy has jumped the shark so many times that all the jumped sharks have formed a support group, and that support group now contains all the sharks in the world. She's jumped so many sharks that the phrase "jumped the shark" has jumped the shark.
This one, I don't even know what to say:
"My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June, right? We all remember Bobby Kennedy was assassinated in June in California. I don't understand it," she said, dismissing calls to drop out.
She's staying in the race that she's clearly lost because someone might shoot Barack Obama?
She's jumped a planet full of sharks. She's jumped the concept of a shark. The shark refused to be jumped, because it was so confused and infuriated by this. There is no shark.
-A
This one, I don't even know what to say:
"My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June, right? We all remember Bobby Kennedy was assassinated in June in California. I don't understand it," she said, dismissing calls to drop out.
She's staying in the race that she's clearly lost because someone might shoot Barack Obama?
She's jumped a planet full of sharks. She's jumped the concept of a shark. The shark refused to be jumped, because it was so confused and infuriated by this. There is no shark.
-A
Monday, May 19, 2008
Top 5 Simpsons Quotes that Explain Much of Life
Runner-up) Homer is celebrating the return of alcohol to a previously dry Springfield.
Homer: "To alcohol! The cause of -- and solution to -- all life's problems."
Application: Saturday mornings.
5) Homer is on trial for invading the privacy of celebrities that have moved to Springfield.
Homer: Look, all I'm saying is, if these big stars didn't want people going through their garbage and saying they're gay, then they shouldn't have tried to express themselves creatively.
Application: Explaining why I know the details of Brad Pitt's love life.
4) Homer is watching a comedian on "Evening at the Improv".
Comedian: See, black guys drive a car like this:
[Leans back]
Do, do, ch. Do-be-do, do-be-do-be-do.
Yeah, but white guys, see, they drive a car like this:
[Hunches forward, talks nasally]
Dee-da-dee, a-dee-da-dee-da-dee-da-dee.
Homer: Ah ha ha, it's true, it's true! We're so lame!
Application: stuffwhitepeoplelike.com (nb: this Simpsons episode was fifteen years ago).
3) Moe is hooked up to a lie detector, which buzzes whenever he lies.
Police: He checks out. Ok, sir, you're free to go.
Moe: Good, 'cause I have a hot date tonight. (buzzes) Blind date. (buzzes) Dinner with friends. (buzzes) Dinner alone. (buzzes) Watching TV alone. (buzzes) Alright! I'm going to sit at home and ogle the ladies in the Victoria's Secret catalog. (buzzes) Sears catalog. (dings) Now, would you unhook this already, please? I don't deserve this kind of shabby treatment. (buzzes).
Application: Airport security, where everyone believes they're above this kind of abuse, and they're really not.
2) Homer has just rejected a home security system after learning about the price.
Home Security Salesman: Surely you can't put a price on your family's safety!
Homer: I wouldn't have thought so either, but here we are.
Application: Law and Economics
1) Grandpa Simpson is talking to a teenaged Homer.
Grandpa: I used to be with it, but then they changed what "it" was. Now, what I'm with isn't "it", and what's "it" seems weird and scary to me. It'll happen to you!
Application: My life.
- A
Homer: "To alcohol! The cause of -- and solution to -- all life's problems."
Application: Saturday mornings.
5) Homer is on trial for invading the privacy of celebrities that have moved to Springfield.
Homer: Look, all I'm saying is, if these big stars didn't want people going through their garbage and saying they're gay, then they shouldn't have tried to express themselves creatively.
Application: Explaining why I know the details of Brad Pitt's love life.
4) Homer is watching a comedian on "Evening at the Improv".
Comedian: See, black guys drive a car like this:
[Leans back]
Do, do, ch. Do-be-do, do-be-do-be-do.
Yeah, but white guys, see, they drive a car like this:
[Hunches forward, talks nasally]
Dee-da-dee, a-dee-da-dee-da-dee-da-dee.
Homer: Ah ha ha, it's true, it's true! We're so lame!
Application: stuffwhitepeoplelike.com (nb: this Simpsons episode was fifteen years ago).
3) Moe is hooked up to a lie detector, which buzzes whenever he lies.
Police: He checks out. Ok, sir, you're free to go.
Moe: Good, 'cause I have a hot date tonight. (buzzes) Blind date. (buzzes) Dinner with friends. (buzzes) Dinner alone. (buzzes) Watching TV alone. (buzzes) Alright! I'm going to sit at home and ogle the ladies in the Victoria's Secret catalog. (buzzes) Sears catalog. (dings) Now, would you unhook this already, please? I don't deserve this kind of shabby treatment. (buzzes).
Application: Airport security, where everyone believes they're above this kind of abuse, and they're really not.
2) Homer has just rejected a home security system after learning about the price.
Home Security Salesman: Surely you can't put a price on your family's safety!
Homer: I wouldn't have thought so either, but here we are.
Application: Law and Economics
1) Grandpa Simpson is talking to a teenaged Homer.
Grandpa: I used to be with it, but then they changed what "it" was. Now, what I'm with isn't "it", and what's "it" seems weird and scary to me. It'll happen to you!
Application: My life.
- A
Friday, May 16, 2008
The Wages Of Crying "Backlash"
I'm going to go on record saying that the fallout from 2004 was entirely overrated. Anti-gay social conservatives claimed that the backlash to gay marriage sent Bush to victory, but there is little evidence of this. In fact, the best evidence of a backlash that the anti-gay forces can point to is the correlation between Bush's victory and the Massachusetts decision, but the same can be said of anything that occurred contemporaneously (victory, as they say, has a thousand fathers -- hell, there were a few people at the time saying that he won *because* of the Bush Doctrine and the Iraq War.) By that logic, the Red Sox winning the World Series had a hand in Bush's victory.
The argument that is often made is that these court decisions "mobilize" groups who would otherwise just ignore elections. But do the kind of people who get incensed by out-of-state gays acquiring marriage rights sound like your average wishy-washy on-the-fence voter? Or do they sound exactly like the Republican base? Thinking about it logically, the "damage" would have to be would-be Kerry voters who were so incensed by out-of-state gays acquiring rights that they abandoned Kerry (who was opposed to gay marriage) for Bush (who was opposed to gay marriage).
Does that sound like something that would happen? Or is it more likely that social conservatives, already pissed that courts would reasonably interpret the law to allow for the exercise of a fundamental right, chose to loudly interpret a narrow Bush victory as a "backlash" against gay rights?
But on to your original question: should courts take into account the effect that their decisions will have on elections? I say no. There are already two branches of government that act with an eye to how their actions will be perceived by an electorate, why drag the branch that was explicitly protected from democratic accountability into it? While I agree that courts should look outside of themselves (say, by examining evidence and not simply assuming that both sides present equal arguments), there's no reason to try to predict the effect of their decision on the political scene, because (a) who knows if their predictions will even be accurate and (b) it simply has no bearing on whether the people before the court are right or wrong according to the jurist's view of the law.
To use a historical example, the rise of the conservative wing of the Republican party after a generally Democratic period following WWII has variously been attributed to a "backlash" against Roe v. Wade, the excesses of the 1960s, Cold War weakness, labor unions, and every other bugaboo of the Right. "Backlash" thinking is almost always used to attack decisions/people that the Right dislikes anyway, without regard for whether there actually was a backlash (short answer: there wasn't). By paying heed to this counter-mobilization myth, the courts would just be buying into right-wing thought, failing in their duty to conduct legitimate judicial review, and even then they might not actually avoid controversy (the authors of Roe v. Wade were sensitive to this nonsense, and legitimately thought they were settling a controversial issue ... whoops!).
In reality, the rise of the right-wing in our political culture is not the result of a backlash, but the predictable post-Civil Rights era re-ordering of the country, with Democrats becoming the party of the urban and the north and Republicans taking over the south (not so much a "backlash" as the inevitable fracturing of the New Deal coalition). While there were many, many catalysts for this change, one stands out in light of our discussion: Brown v. Board of Education. If Earl Warren would have known that the court's decision would eventually lead to Ronald Reagan and the rise of the GOP, would he still decide Brown the way he did?
In the end, as convinced as he was as to the correctness of the decision, I doubt that he would have cared one bit. I think that we should adopt the same attitude, celebrate the court for bravely coming to the right legal decision on this issue, and let the right-wing worship at the shrine of the Almighty Backlash.
- A
The argument that is often made is that these court decisions "mobilize" groups who would otherwise just ignore elections. But do the kind of people who get incensed by out-of-state gays acquiring marriage rights sound like your average wishy-washy on-the-fence voter? Or do they sound exactly like the Republican base? Thinking about it logically, the "damage" would have to be would-be Kerry voters who were so incensed by out-of-state gays acquiring rights that they abandoned Kerry (who was opposed to gay marriage) for Bush (who was opposed to gay marriage).
Does that sound like something that would happen? Or is it more likely that social conservatives, already pissed that courts would reasonably interpret the law to allow for the exercise of a fundamental right, chose to loudly interpret a narrow Bush victory as a "backlash" against gay rights?
But on to your original question: should courts take into account the effect that their decisions will have on elections? I say no. There are already two branches of government that act with an eye to how their actions will be perceived by an electorate, why drag the branch that was explicitly protected from democratic accountability into it? While I agree that courts should look outside of themselves (say, by examining evidence and not simply assuming that both sides present equal arguments), there's no reason to try to predict the effect of their decision on the political scene, because (a) who knows if their predictions will even be accurate and (b) it simply has no bearing on whether the people before the court are right or wrong according to the jurist's view of the law.
To use a historical example, the rise of the conservative wing of the Republican party after a generally Democratic period following WWII has variously been attributed to a "backlash" against Roe v. Wade, the excesses of the 1960s, Cold War weakness, labor unions, and every other bugaboo of the Right. "Backlash" thinking is almost always used to attack decisions/people that the Right dislikes anyway, without regard for whether there actually was a backlash (short answer: there wasn't). By paying heed to this counter-mobilization myth, the courts would just be buying into right-wing thought, failing in their duty to conduct legitimate judicial review, and even then they might not actually avoid controversy (the authors of Roe v. Wade were sensitive to this nonsense, and legitimately thought they were settling a controversial issue ... whoops!).
In reality, the rise of the right-wing in our political culture is not the result of a backlash, but the predictable post-Civil Rights era re-ordering of the country, with Democrats becoming the party of the urban and the north and Republicans taking over the south (not so much a "backlash" as the inevitable fracturing of the New Deal coalition). While there were many, many catalysts for this change, one stands out in light of our discussion: Brown v. Board of Education. If Earl Warren would have known that the court's decision would eventually lead to Ronald Reagan and the rise of the GOP, would he still decide Brown the way he did?
In the end, as convinced as he was as to the correctness of the decision, I doubt that he would have cared one bit. I think that we should adopt the same attitude, celebrate the court for bravely coming to the right legal decision on this issue, and let the right-wing worship at the shrine of the Almighty Backlash.
- A
Thursday, May 15, 2008
Again? How Could This Happen Again?
Dearest A,
The California Supreme Court struck down a ban on same-sex marriage today. Same-sex couples everywhere rejoiced. Family advocates cursed the courts.
Democrats shook their heads in disbelief. Gay marriage will again become a political topic in a presidential year.
Courts seem to have a tin ear when it comes to politics. Goodridge v. Department of Public Health -- the Massachusetts same-sex marriage case -- came out in November 2003, about a year before the 2004 Kerry-Bush election. Conservative evangelicals used it as a rallying cry, and pundits credited ballot initiatives banning gay marriage in several states with Bush's victory that year.
This California case will almost certainly become a major issue in the presidential election. Should the court have taken that into consideration before issuing its decision?
I think so, for two reasons.
1) Judicial decisions have real-world impact. We lawyers tend to think of the litigation process as an intellectual exercise, one filled with writing and research and arguments, and neglect the effects a decision might have. Roe v. Wade is a perfect example of this -- Justice Harry Blackmun allegedly believed his decision would stir trouble for a few weeks and then quickly blow over. Thirty-five years later, we're still mired in an abortion debate.
Judges aren't deciding things in a vacuum. What they decide could have a major impact on the democratic process. They should take that impact into account, at least when it comes to the timing of decisions.
2) Courts ARE political bodies. The Supreme Court effectively debunked the notion of courts as neutral arbiters with Bush v. Gore. The situation has only gotten worse with the sharp tack to the right our federal courts have taken. With one Supreme Court, the Supreme Court says schools can use race in admissions decisions in Grutter v. Bollinger. In the next, the Court says school districts cannot use race in desegregation plans. Similar facts, two different courts, two different results.
The judges on the California Supreme Court will likely say that they are neutral in this whole gay-marriage political mess. They issued a decision based on the law and the facts, and they issued it now simply because it was finished now. They may well believe it. But if courts are political bodies, as has become apparently clear in the last few years, then judges should, at the very least, embrace that role and think about the political impact of their decisions (see #1).
Love,
Sammy
The California Supreme Court struck down a ban on same-sex marriage today. Same-sex couples everywhere rejoiced. Family advocates cursed the courts.
Democrats shook their heads in disbelief. Gay marriage will again become a political topic in a presidential year.
Courts seem to have a tin ear when it comes to politics. Goodridge v. Department of Public Health -- the Massachusetts same-sex marriage case -- came out in November 2003, about a year before the 2004 Kerry-Bush election. Conservative evangelicals used it as a rallying cry, and pundits credited ballot initiatives banning gay marriage in several states with Bush's victory that year.
This California case will almost certainly become a major issue in the presidential election. Should the court have taken that into consideration before issuing its decision?
I think so, for two reasons.
1) Judicial decisions have real-world impact. We lawyers tend to think of the litigation process as an intellectual exercise, one filled with writing and research and arguments, and neglect the effects a decision might have. Roe v. Wade is a perfect example of this -- Justice Harry Blackmun allegedly believed his decision would stir trouble for a few weeks and then quickly blow over. Thirty-five years later, we're still mired in an abortion debate.
Judges aren't deciding things in a vacuum. What they decide could have a major impact on the democratic process. They should take that impact into account, at least when it comes to the timing of decisions.
2) Courts ARE political bodies. The Supreme Court effectively debunked the notion of courts as neutral arbiters with Bush v. Gore. The situation has only gotten worse with the sharp tack to the right our federal courts have taken. With one Supreme Court, the Supreme Court says schools can use race in admissions decisions in Grutter v. Bollinger. In the next, the Court says school districts cannot use race in desegregation plans. Similar facts, two different courts, two different results.
The judges on the California Supreme Court will likely say that they are neutral in this whole gay-marriage political mess. They issued a decision based on the law and the facts, and they issued it now simply because it was finished now. They may well believe it. But if courts are political bodies, as has become apparently clear in the last few years, then judges should, at the very least, embrace that role and think about the political impact of their decisions (see #1).
Love,
Sammy
Friday, May 9, 2008
Istanbul, Not Constantinople
We're having a process vs. substance debate? What? Why did nobody tell me? All I remember from that earlier exchange was me saying that the media/legal establishment tends to create a false equal-and-opposite dynamic that muddles where the truth really lies. You responded with a post juxtaposing (and thus equating) "Air America" with "Fox News", with no examination as to whether either network was a more reliable source of truth. Alan's trenchant analysis FTW!
As to the Burma vs. Myanmar split, there are several rules that we could follow with regard to country names. Here are the ones I've thought of:
1) What their government designates as the country name.
2) What they call themselves.
3) What they are known as to others.
If you respect 1), then the country is Myanmar. The government -- those who have a monopoly on the use of force -- calls the country Myanmar. No, the government isn't democratically legitimate, but that doesn't make it not the government. Wishing that the men with guns weren't in control isn't going to change the fact that the men with guns are in control. And deliberately failing to call a country by its designated name is not only the most token of token oppositions (how, exactly, is a name supposed to overthrow a junta?), it's also probably the single most petulant form of protest. We might as well call it Silly Bunch of Jerks.
If you respect 2), then survey the country and figure it out. Even that, of course, has limits. Should we call Germany Deutscheland because that's what they call themselves? Even pronouncing the names gets tricky -- I don't go pronouncing Turkey as "Turk-kee-yay" (mostly because I'm not a total douchebag), even though it is the proper Turkish pronunciation. And of course the country's residents may not even agree on the country, let alone the name -- Northern Ireland, anyone?
So I'll go with 3). A country should be called whichever name most easily and accurately communicates the region/country to the newspaper's readers. French Guyana probably doesn't want to be called French Guyana, but we need to call it that to seperate it from the Guyana next door. Sorry, French Guyana. Sometimes names have to change, like when a country turns into a different country (Bohemia + Moravia + Slovakia --> Czechoslovakia, Czechoslovakia - Slovakia --> Czech Republic). But China has always been China, regardless of whether it's the Qing Dynasty, the Republic, or the People's Republic.
Since I have the same level of awareness of Myanmar/Burma regardless of the name -- it's that Southeast Asian country that isn't the one with the good food, the one we fought in a pointless war, the one Nixon bombed, or the one that is Laos -- I say that "Burma" should win out, in deference to Mission of Burma.
Maybe that should be another rule:
4) Whatever is most punk.
- A
As to the Burma vs. Myanmar split, there are several rules that we could follow with regard to country names. Here are the ones I've thought of:
1) What their government designates as the country name.
2) What they call themselves.
3) What they are known as to others.
If you respect 1), then the country is Myanmar. The government -- those who have a monopoly on the use of force -- calls the country Myanmar. No, the government isn't democratically legitimate, but that doesn't make it not the government. Wishing that the men with guns weren't in control isn't going to change the fact that the men with guns are in control. And deliberately failing to call a country by its designated name is not only the most token of token oppositions (how, exactly, is a name supposed to overthrow a junta?), it's also probably the single most petulant form of protest. We might as well call it Silly Bunch of Jerks.
If you respect 2), then survey the country and figure it out. Even that, of course, has limits. Should we call Germany Deutscheland because that's what they call themselves? Even pronouncing the names gets tricky -- I don't go pronouncing Turkey as "Turk-kee-yay" (mostly because I'm not a total douchebag), even though it is the proper Turkish pronunciation. And of course the country's residents may not even agree on the country, let alone the name -- Northern Ireland, anyone?
So I'll go with 3). A country should be called whichever name most easily and accurately communicates the region/country to the newspaper's readers. French Guyana probably doesn't want to be called French Guyana, but we need to call it that to seperate it from the Guyana next door. Sorry, French Guyana. Sometimes names have to change, like when a country turns into a different country (Bohemia + Moravia + Slovakia --> Czechoslovakia, Czechoslovakia - Slovakia --> Czech Republic). But China has always been China, regardless of whether it's the Qing Dynasty, the Republic, or the People's Republic.
Since I have the same level of awareness of Myanmar/Burma regardless of the name -- it's that Southeast Asian country that isn't the one with the good food, the one we fought in a pointless war, the one Nixon bombed, or the one that is Laos -- I say that "Burma" should win out, in deference to Mission of Burma.
Maybe that should be another rule:
4) Whatever is most punk.
- A
And Another Thing ...
Dearest A,
Today's Slate Explainer highlights our process v. substance debate in a slightly different context.
When deciding whether to call that tiny junta-ruled nation in Southeast Asia "Burma" or "Myanmar," different publications use different methods.
The NYTimes apparently allows the country to call itself whatever it wants. Thus, it used "Myanmar" almost immediately after the ruling junta christened the country with that name.
Slate calls it "Burma" because few countries or international bodies recognize that renaming junta as legitimate.
One could say that the Times follows a process-oriented approach, while Slate is more concerned with substance and "legitimacy." What are your thoughts?
Love,
Sammy
Today's Slate Explainer highlights our process v. substance debate in a slightly different context.
When deciding whether to call that tiny junta-ruled nation in Southeast Asia "Burma" or "Myanmar," different publications use different methods.
The NYTimes apparently allows the country to call itself whatever it wants. Thus, it used "Myanmar" almost immediately after the ruling junta christened the country with that name.
Slate calls it "Burma" because few countries or international bodies recognize that renaming junta as legitimate.
One could say that the Times follows a process-oriented approach, while Slate is more concerned with substance and "legitimacy." What are your thoughts?
Love,
Sammy
Tuesday, May 6, 2008
When Individual Choice Goes Awry ...
Dearest A,
Good post on individual responsibility and institutional change. Here's another topic along the same lines -- the intractable problems of urban education, most of which can be attributed to individual choices parents make in sending their kids to school.
A recent report on the D.C. schools (public and charter) showed that 90 percent -- 90 percent! -- of its students were children of color. The reason for this shocking statistic: white flight from public schools following Brown v. Board of Education. D.C. schools were less than 60 percent black before that decision; by 1966, twelve years later, 30,000 white children had left the school system.
The individual choices of white and middle-class black parents drained the school system of resources. With less of a tax base for schools, and less interest in the school system among powerful parents who refused to send their children there, the D.C. schools were left to crumble. And crumble they did.
Now, if we want to change the world, education is a pretty darned good place to start. But as long as parents are able to send their kids to private schools, or move to wealthier suburbs with wealthier schools, urban schools will remain mired in the same problems.
The Supreme Court has made this problem even bigger by refusing to allow school districts to use race in their attendance plans. Now, even if school districts happen to have enough white children to fully integrate their schools, the districts can't do so (at least not by taking race into account).
Individual choice created this problem. And now the Supreme Court has prevented an institutional solution. Where do we go from here?
Love,
Sammy
Good post on individual responsibility and institutional change. Here's another topic along the same lines -- the intractable problems of urban education, most of which can be attributed to individual choices parents make in sending their kids to school.
A recent report on the D.C. schools (public and charter) showed that 90 percent -- 90 percent! -- of its students were children of color. The reason for this shocking statistic: white flight from public schools following Brown v. Board of Education. D.C. schools were less than 60 percent black before that decision; by 1966, twelve years later, 30,000 white children had left the school system.
The individual choices of white and middle-class black parents drained the school system of resources. With less of a tax base for schools, and less interest in the school system among powerful parents who refused to send their children there, the D.C. schools were left to crumble. And crumble they did.
Now, if we want to change the world, education is a pretty darned good place to start. But as long as parents are able to send their kids to private schools, or move to wealthier suburbs with wealthier schools, urban schools will remain mired in the same problems.
The Supreme Court has made this problem even bigger by refusing to allow school districts to use race in their attendance plans. Now, even if school districts happen to have enough white children to fully integrate their schools, the districts can't do so (at least not by taking race into account).
Individual choice created this problem. And now the Supreme Court has prevented an institutional solution. Where do we go from here?
Love,
Sammy
Monday, May 5, 2008
Your Gut Is The Most Correct Gut Of All
Absolutely. The idea that one person can change the world is generally thought of as positive and uplifting, and as a consequence most people miss the fact that such a belief is solipsistic, insanely inefficient, and ultimately very conservative.
We're supposed to be concerned with our "carbon footprint", when what we really should do is elect people who will raise the MPG requirement, invest in better technologies, and provide incentives for denser, less energy-intensive communities.
We're supposed to use our time and energy learning how to master a potentially dangerous product, rather than pass laws forcing the manufacturers to just make the product safer.
And, as per your atrocious-sounding book, we're supposed to scale mountains and build schools on our own out of nothing but will and gumption, rather than vote for a government that makes education spending and school policies an actual priority.
(see also: health care, personal finance, obesity, really anything and everything ...)
Social goals become personal endeavors. Responsibility is shifted from the directly culpable few (polluting companies) to the indirectly culpable many (consumers). The relatively simple and fair (find out how much damage is being caused and reduce it) becomes complex and unfair (how do you calculate a "carbon footprint", again? and nobody else is doing it!). And as we continue to believe that everything lies in the hands of us individuals, the disdain for any kind of collective action grows and grows.
I'm just glad this idiotic meme hasn't stunted us more -- imagine this kind of thinking in 1964. Integration would be a "personal preference", shopping at a segregated store would be a "consumer choice", and, above all, ending institutionalized racism would be a matter of "individual responsibility". Does anyone really think that this approach would have been just as successful as the Civil Rights Acts and the other instances of government intervention? Shouldn't being effective be the most important attribute when we choose a solution to a problem?
Then again, even though that approach would likely lead to decades of failure and no discernible progress, I'm sure all those stories of personal triumph would have been very uplifting.
-A
We're supposed to be concerned with our "carbon footprint", when what we really should do is elect people who will raise the MPG requirement, invest in better technologies, and provide incentives for denser, less energy-intensive communities.
We're supposed to use our time and energy learning how to master a potentially dangerous product, rather than pass laws forcing the manufacturers to just make the product safer.
And, as per your atrocious-sounding book, we're supposed to scale mountains and build schools on our own out of nothing but will and gumption, rather than vote for a government that makes education spending and school policies an actual priority.
(see also: health care, personal finance, obesity, really anything and everything ...)
Social goals become personal endeavors. Responsibility is shifted from the directly culpable few (polluting companies) to the indirectly culpable many (consumers). The relatively simple and fair (find out how much damage is being caused and reduce it) becomes complex and unfair (how do you calculate a "carbon footprint", again? and nobody else is doing it!). And as we continue to believe that everything lies in the hands of us individuals, the disdain for any kind of collective action grows and grows.
I'm just glad this idiotic meme hasn't stunted us more -- imagine this kind of thinking in 1964. Integration would be a "personal preference", shopping at a segregated store would be a "consumer choice", and, above all, ending institutionalized racism would be a matter of "individual responsibility". Does anyone really think that this approach would have been just as successful as the Civil Rights Acts and the other instances of government intervention? Shouldn't being effective be the most important attribute when we choose a solution to a problem?
Then again, even though that approach would likely lead to decades of failure and no discernible progress, I'm sure all those stories of personal triumph would have been very uplifting.
-A
Doing Good and Changing the World
Dearest A,
The topic on my mind as of late has little to do with THE LAW, but much to do with how we approach problems as a society -- which, after all, is what THE LAW is supposed to do, right?
I just finished reading Three Cups of Tea as part of my book club. The book tells the story of Greg Mortenson, a climber who attempted to scale K2 and instead made it his mission to build schools in Pakistan. The idea is certainly a great one, and I admire Mr. Mortenson for conceiving of and following through on his project.
But here's the problem -- this book taps into that one-person-can-change-the-world meme that may actually be counter-productive. Individuals rarely act alone, and, even in Mr. Mortenson's case, it was all the help from individuals in Pakistan who believed in his idea that made his project a success. And Mr. Mortenson only became truly successful when he convinced wealthy individuals to back his projects.
This kind of collective action means that it is institutions, not individuals, who can actually make the raucous, heard-round-the-world change that will make a difference.
Not only is this cult of personality therefore incorrect, it is also counter-productive because it takes the responsibility off of our institutional actors -- governments, in particular. In our spare moments, we may all wish that there are more Greg Mortensons in the world. The fact is that we Americans, collectively, have the potential to make change on a scale much larger than anything Mortenson has accomplished.
But as long as we believe that the answer lies in more Greg Mortensons, then we will never demand such collective action.
This idea is kind of out there, and it got a whole lot of criticism during the book club session, but my gut tells me it's right. Thoughts?
Love,
Sammy
The topic on my mind as of late has little to do with THE LAW, but much to do with how we approach problems as a society -- which, after all, is what THE LAW is supposed to do, right?
I just finished reading Three Cups of Tea as part of my book club. The book tells the story of Greg Mortenson, a climber who attempted to scale K2 and instead made it his mission to build schools in Pakistan. The idea is certainly a great one, and I admire Mr. Mortenson for conceiving of and following through on his project.
But here's the problem -- this book taps into that one-person-can-change-the-world meme that may actually be counter-productive. Individuals rarely act alone, and, even in Mr. Mortenson's case, it was all the help from individuals in Pakistan who believed in his idea that made his project a success. And Mr. Mortenson only became truly successful when he convinced wealthy individuals to back his projects.
This kind of collective action means that it is institutions, not individuals, who can actually make the raucous, heard-round-the-world change that will make a difference.
Not only is this cult of personality therefore incorrect, it is also counter-productive because it takes the responsibility off of our institutional actors -- governments, in particular. In our spare moments, we may all wish that there are more Greg Mortensons in the world. The fact is that we Americans, collectively, have the potential to make change on a scale much larger than anything Mortenson has accomplished.
But as long as we believe that the answer lies in more Greg Mortensons, then we will never demand such collective action.
This idea is kind of out there, and it got a whole lot of criticism during the book club session, but my gut tells me it's right. Thoughts?
Love,
Sammy
Thursday, May 1, 2008
Is Anyone Else Having a Flashback to First Year?
Dearest A,
Sure, blame it on the press.
I agree wholeheartedly with your point, but there is something to be said for "neutral" and "objective" journalism. Once you abandon even the veneer of objectivity for more "truth-seeking" journalism, you're just as likely to end up with a Fox News as with an Air America.
Legal theorists have been obsessing about similar ideas for decades now. Which is more important -- ensuring a fair process or ensuring good outcomes?
Antonin Scalia and I can probably all agree on the basic tenets of a fair process in the legal system. But this fair process will often produce outcomes I don't like.
Alternatively, we can focus on achieving good outcomes, but Scalia and I have very different ideas on what a "good" outcome is. Who wins that battle? Conservatives have been doing a damned good job at prevailing in the war of ideas so far.
So, like I said, "neutral" journalism and process-focused legal theory are perhaps the best methods for achieving "truth" and "good." Because once you abandon the process in favor of the substance, might will usually make right.
Sure, blame it on the press.
I agree wholeheartedly with your point, but there is something to be said for "neutral" and "objective" journalism. Once you abandon even the veneer of objectivity for more "truth-seeking" journalism, you're just as likely to end up with a Fox News as with an Air America.
Legal theorists have been obsessing about similar ideas for decades now. Which is more important -- ensuring a fair process or ensuring good outcomes?
Antonin Scalia and I can probably all agree on the basic tenets of a fair process in the legal system. But this fair process will often produce outcomes I don't like.
Alternatively, we can focus on achieving good outcomes, but Scalia and I have very different ideas on what a "good" outcome is. Who wins that battle? Conservatives have been doing a damned good job at prevailing in the war of ideas so far.
So, like I said, "neutral" journalism and process-focused legal theory are perhaps the best methods for achieving "truth" and "good." Because once you abandon the process in favor of the substance, might will usually make right.
Tuesday, April 29, 2008
Equal and Opposite
Dear Sammy,
Your great post on the voter fraud fraud reminds me of one of the fundamental laws of our political press: every problem has an equal and opposite problem.
Thus, the problem of voter suppression is balanced by the equal and opposite problem of voter fraud. The problems caused by a lack of health care are balanced by the equal and opposite problem of moral hazard. The harm to our environment is balanced by the equal and opposite problem of harm to the economy.
Now, someone could look into whether voter fraud happens more often than voter suppression (of course it doesn't), or whether moral hazard even exists (it only seems to show up when the proposed programs help the poor, doesn't it?), or whether the claims of drastic harm to the economy are based on anything beyond speculation (not really, no). But that would violate the utmost duty of the press: to remain neutral, apolitical, and unbiased. A definitive answer to these questions would discredit one of the participants, and thus seeking the truth becomes a partisan affair.
Instead, we are left with mere preferences -- your weighing of the abstract sin of voter fraud against the abstract sin of voter suppression, your beliefs about helping people versus your beliefs about the motives and actions of the underclass, your feelings about the environment against your feelings about the economy.
And preferences, unlike facts, are never wrong.
Your great post on the voter fraud fraud reminds me of one of the fundamental laws of our political press: every problem has an equal and opposite problem.
Thus, the problem of voter suppression is balanced by the equal and opposite problem of voter fraud. The problems caused by a lack of health care are balanced by the equal and opposite problem of moral hazard. The harm to our environment is balanced by the equal and opposite problem of harm to the economy.
Now, someone could look into whether voter fraud happens more often than voter suppression (of course it doesn't), or whether moral hazard even exists (it only seems to show up when the proposed programs help the poor, doesn't it?), or whether the claims of drastic harm to the economy are based on anything beyond speculation (not really, no). But that would violate the utmost duty of the press: to remain neutral, apolitical, and unbiased. A definitive answer to these questions would discredit one of the participants, and thus seeking the truth becomes a partisan affair.
Instead, we are left with mere preferences -- your weighing of the abstract sin of voter fraud against the abstract sin of voter suppression, your beliefs about helping people versus your beliefs about the motives and actions of the underclass, your feelings about the environment against your feelings about the economy.
And preferences, unlike facts, are never wrong.
License and Registration, Please
All's been quiet on the legal front, with much of the country's attention focused on the never-ending Democratic primaries.
But that's all about to change. The Supreme Court's term is slowly winding down, and we legal junkies know what that means. Controversial decisions! Big issues! Mind-boggling turns of events!
With yesterday's decision in the Indiana voter ID fraud case (Crawford v. Marion County Election Board), the Court does not disappoint. By a 6-3 vote, the Court upheld a state statute that required citizens voting at the polling places to present a government-issued photo ID.
Now, this law definitely passes the Mom test -- my 58-year-old working-class mother thinks states are perfectly within their rights to ask for ID before allowing people to vote. Because, after all, doesn't everyone already have an ID anyway?
The problem with this argument: there are a whole bunch of people who fall below the radar screen of me and my mom -- poor people, elderly people, people who don't drive -- that still have the right to vote. The Indiana law imposes a burden on these people to go out and get a photo ID that otherwise they would not need.
The Court's task is to balance that burden against the harm of potential voter fraud. If the law imposes too great a burden on an American's right to vote, it's unconstitutional. Conversely, if the law doesn't prevent any real harm, it's also unconstitutional.
The Court failed on both counts in its decision. Many other bloggers have astutely commented on the thin evidence of voter fraud in Indiana. In the main opinion, Justice Stevens relies on one instance of absentee voter fraud (not the in-person voter fraud that the Indiana statute addresses) and one Boss Tweed anecdote to justify the prevention of the supposed voter fraud in Indiana. In fact, there is no evidence that voters are stampeding the polls, pretending to be people that they are not.
The Court should have struck down the law on that ground alone; with no harm to prevent, then there's no reason for the state to impose any burden on the right to vote.
And the burden the law does impose is far from minor. As anyone who has obtained a driver's license knows, the litany of necessary documents can be confusing. Indigent and elderly individuals likely don't have birth certificates, or passports, or social security cards readily available. They also often don't have easy access to transportation to the government offices that distribute the IDs. And it takes someone with a serious commitment to democracy to stand in the DMV lines for hours on end, simply to get a photo ID that will allow them to vote once a year.
The Court's analysis simply does not hold water, and it has opened a door for partisan politicians to place further burdens on the right to vote. In a democracy with such a low participation rate, our governments should be making it easier -- not harder -- for us to get to the polls. But Crawford gives legal credence to the idea that big burdens can be imposed, even for phantom problems with the voting process.
But that's all about to change. The Supreme Court's term is slowly winding down, and we legal junkies know what that means. Controversial decisions! Big issues! Mind-boggling turns of events!
With yesterday's decision in the Indiana voter ID fraud case (Crawford v. Marion County Election Board), the Court does not disappoint. By a 6-3 vote, the Court upheld a state statute that required citizens voting at the polling places to present a government-issued photo ID.
Now, this law definitely passes the Mom test -- my 58-year-old working-class mother thinks states are perfectly within their rights to ask for ID before allowing people to vote. Because, after all, doesn't everyone already have an ID anyway?
The problem with this argument: there are a whole bunch of people who fall below the radar screen of me and my mom -- poor people, elderly people, people who don't drive -- that still have the right to vote. The Indiana law imposes a burden on these people to go out and get a photo ID that otherwise they would not need.
The Court's task is to balance that burden against the harm of potential voter fraud. If the law imposes too great a burden on an American's right to vote, it's unconstitutional. Conversely, if the law doesn't prevent any real harm, it's also unconstitutional.
The Court failed on both counts in its decision. Many other bloggers have astutely commented on the thin evidence of voter fraud in Indiana. In the main opinion, Justice Stevens relies on one instance of absentee voter fraud (not the in-person voter fraud that the Indiana statute addresses) and one Boss Tweed anecdote to justify the prevention of the supposed voter fraud in Indiana. In fact, there is no evidence that voters are stampeding the polls, pretending to be people that they are not.
The Court should have struck down the law on that ground alone; with no harm to prevent, then there's no reason for the state to impose any burden on the right to vote.
And the burden the law does impose is far from minor. As anyone who has obtained a driver's license knows, the litany of necessary documents can be confusing. Indigent and elderly individuals likely don't have birth certificates, or passports, or social security cards readily available. They also often don't have easy access to transportation to the government offices that distribute the IDs. And it takes someone with a serious commitment to democracy to stand in the DMV lines for hours on end, simply to get a photo ID that will allow them to vote once a year.
The Court's analysis simply does not hold water, and it has opened a door for partisan politicians to place further burdens on the right to vote. In a democracy with such a low participation rate, our governments should be making it easier -- not harder -- for us to get to the polls. But Crawford gives legal credence to the idea that big burdens can be imposed, even for phantom problems with the voting process.
Friday, April 4, 2008
Not Into the Torture Discussion?
Then how about some nipple rings?
William Saletan believes that since extraneous metal pieces are voluntary, then those of us with said rings (be they nose, nipple, or bellybutton) have implicitly agreed to invasive procedures at airport security lines.
First off, it's unclear to me why a nipple ring would set off a metal detector. Women wear earrings through the security line, no problem. Wedding rings, ditto. But let's move on to the bigger question ...
Why does consent to a piercing equal consent to increased security procedures? Saletan points to a distinction between pacemakers (necessary) and nipple rings (unnecessary). OK. But earrings are also unnecessary, and if the reason for the removal of the nipple ring is the safety of other passengers (as Saletan suggests), then ladies, it's time to leave those diamond studs in the luggage.
William Saletan believes that since extraneous metal pieces are voluntary, then those of us with said rings (be they nose, nipple, or bellybutton) have implicitly agreed to invasive procedures at airport security lines.
First off, it's unclear to me why a nipple ring would set off a metal detector. Women wear earrings through the security line, no problem. Wedding rings, ditto. But let's move on to the bigger question ...
Why does consent to a piercing equal consent to increased security procedures? Saletan points to a distinction between pacemakers (necessary) and nipple rings (unnecessary). OK. But earrings are also unnecessary, and if the reason for the removal of the nipple ring is the safety of other passengers (as Saletan suggests), then ladies, it's time to leave those diamond studs in the luggage.
Saletan sounds like a bitter old man, decrying "those kids" and their choices to get tattoos and listen to rock music and pierce their nipples. But when we're talking about airport security, whether an adornment is "necessary" is irrelevant. It's whether the piercing poses a security risk.
Nipple rings are no more dangerous than other kinds of jewelry we allow into the cabin. Passengers should not be forced to remove them -- a painful and embarassing process -- before they'll be allowed onboard.
Wednesday, April 2, 2008
Torture ...
I can't believe we're having this conversation again.
There should be one simple rule here: Jack Bauer can torture. The rest of us cannot.
There should be one simple rule here: Jack Bauer can torture. The rest of us cannot.
Friday, March 28, 2008
No to Near Beer!
You make some good points, but the nightmare scenario you propose simply will not come to pass. Why? As you and I can attest, people HATE 3.2% beer. No one wants to drink it. Liquor companies will surely respond to this overwhelming dislike of their product and raise the alcohol quantity in those states which allow them to do so.
In fact, I think your example actually proves my point. In the absence of fedeal regulation of alcohol content, states are independently regulating beer. And companies are dealing with that by selling certain products in one state and other products in other states. There is a patchwork of regulation. The Republic still stands.
Companies can certainly choose to limit the amenities (and I use that word loosely -- all we're talking about here are clean toilets and water) to people trapped on airplanes in other states. Or they can choose to make this standard the standard for everybody. But don't give us some namby-pamby "patchwork of regulation" argument as the reason this regulation will hurt you. Companies choose whether it's a patchwork or not.
I don't see why making companies deal with different regulations in different states is any reason to prohibit states from making regulations. The companies should be adapting to the state's needs, not the other way around.
In fact, I think your example actually proves my point. In the absence of fedeal regulation of alcohol content, states are independently regulating beer. And companies are dealing with that by selling certain products in one state and other products in other states. There is a patchwork of regulation. The Republic still stands.
Companies can certainly choose to limit the amenities (and I use that word loosely -- all we're talking about here are clean toilets and water) to people trapped on airplanes in other states. Or they can choose to make this standard the standard for everybody. But don't give us some namby-pamby "patchwork of regulation" argument as the reason this regulation will hurt you. Companies choose whether it's a patchwork or not.
I don't see why making companies deal with different regulations in different states is any reason to prohibit states from making regulations. The companies should be adapting to the state's needs, not the other way around.
Wednesday, March 26, 2008
Re: Remind Me to Never Get Stuck on a Tarmac
I like your idea of the Federal law providing a floor and not a ceiling, but without clear guidance in the Federal law, wouldn't it be somewhat problematic to have the courts decide what counts as an improvement over existing regulations and what doesn't? Would a law requiring cars to run on Ethanol be better? Or worse? It depends on what you think about the environmental claims of Ethanol. The same goes for any number of regulations.
Furthermore, while it sounds fine for companies to simply "use the higher standards as the de facto regulation for the entire country", that kind of situation is exactly what the courts are concerned about, as it completely undercuts the point of federal sovereignty over these issues and gives the most extreme states control over the entire country's regulations.
Take Utah. Utah applies fairly stringent public health regulations to some of its consumer products. These regulations have proven effective at reducing automobile fatalities and health complications, so by those accounts the regulations are "better." Modifying the product for the Utah market imposes a substantial cost on the manufacturers of the product, so by your logic, those manufacturers should simply use Utah's regulation for their product for the entire country.
And now we're all drinking 3.2% beer. Be careful what you wish for.
Furthermore, while it sounds fine for companies to simply "use the higher standards as the de facto regulation for the entire country", that kind of situation is exactly what the courts are concerned about, as it completely undercuts the point of federal sovereignty over these issues and gives the most extreme states control over the entire country's regulations.
Take Utah. Utah applies fairly stringent public health regulations to some of its consumer products. These regulations have proven effective at reducing automobile fatalities and health complications, so by those accounts the regulations are "better." Modifying the product for the Utah market imposes a substantial cost on the manufacturers of the product, so by your logic, those manufacturers should simply use Utah's regulation for their product for the entire country.
And now we're all drinking 3.2% beer. Be careful what you wish for.
Tuesday, March 25, 2008
Remind Me to Never Get Stuck on a Tarmac
Federalism just took another punch in the teeth from the courts.
The Second Circuit struck down New York's new Airline Passenger Bill of Rights, citing concerns about states regulating in areas that should be under federal control. Deregulation is a complicated area of law -- I sure as hell don't understand it -- but I'm seeing some parallels between this decision and the EPA's recent smackdown on California's stricter emissions standards. In both cases, the decisionmaker said that federal laws preempted tougher state regulations.
Well, pooey to that.
Particularly when dealing with health and safety concerns -- and I'd put both auto emissions and airplane toilet accessibility in that category -- the federal government should be providing the floor, not the ceiling. California's citizens breathe some of the worst air in the country. New York airline passengers suffered interminable waits on tarmacs with no water and overflowing toilets. Their local governments should be able to pass laws that make their lives better. And if Michigan and Texas don't feel the need to do the same, well, that's their prerogative.
The counter, of course, is that national companies -- like airlines and automakers -- will have to suffer the expense of creating different cars for California and different accomodations for Kennedy Airport. But the companies actually have a choice. They can either create two sets of products, or use the higher standards as the de facto regulation for the entire country. So this "incosistent regulation" argument really doesn't make sense. The companies can choose to eliminate the patchwork altogether.
I've got no problem with placing that small burden on the shoulders of large corporations. The federal government clearly thinks differently.
The Second Circuit struck down New York's new Airline Passenger Bill of Rights, citing concerns about states regulating in areas that should be under federal control. Deregulation is a complicated area of law -- I sure as hell don't understand it -- but I'm seeing some parallels between this decision and the EPA's recent smackdown on California's stricter emissions standards. In both cases, the decisionmaker said that federal laws preempted tougher state regulations.
Well, pooey to that.
Particularly when dealing with health and safety concerns -- and I'd put both auto emissions and airplane toilet accessibility in that category -- the federal government should be providing the floor, not the ceiling. California's citizens breathe some of the worst air in the country. New York airline passengers suffered interminable waits on tarmacs with no water and overflowing toilets. Their local governments should be able to pass laws that make their lives better. And if Michigan and Texas don't feel the need to do the same, well, that's their prerogative.
The counter, of course, is that national companies -- like airlines and automakers -- will have to suffer the expense of creating different cars for California and different accomodations for Kennedy Airport. But the companies actually have a choice. They can either create two sets of products, or use the higher standards as the de facto regulation for the entire country. So this "incosistent regulation" argument really doesn't make sense. The companies can choose to eliminate the patchwork altogether.
I've got no problem with placing that small burden on the shoulders of large corporations. The federal government clearly thinks differently.
Monday, March 24, 2008
Scrabulous Is Fabulous
From the DC gun case to less life-threatening topics ...
As any Facebook participant will tell you, Scrabulous is one of the social network's most addictive features. Here's how it works: A player can challenge friends to online Scrabble games, complete with an exact Scrabble replica, a virtual dictionary and Wikipedia link to the rules of Scrabble.
The problem? This is one huge copyright infringement.
Hasbro and Mattell jointly own the rights to Scrabble. They do not take kindly to others making money off of their product.
Of course, anyone can understand authors wanting to retain control over their products. That's the whole point of copyright -- Congress and the Framers of the Constitution hoped to spur creativity by giving authors protection for their work. At the same time, the laws put a time limit on how long an author holds that exclusive right. This balance recognizes that creativity often begets creativity, and every creative work, at some point, must become a public good.
Scrabulous, unfortunately, came out too early, well before the copyright in Scrabble expired. But despite its fairly blatant infringement of the Scrabble copyright, there is no indication that the popularity of Scrabulous has harmed the sales of Scrabble. In fact, many users of Facebook say that they bought Scrabble only after playing Scrabulous.
So, Scrabulous is increasing sales of Scrabble. And yet Mattell and Hasbro can still sue? Under the twisted copyright regime, yes. Unlike with most lawsuits, Mattell and Hasbro do not have to show that the defendants are harming them right now. They only have to show a theoretical harm to their ability to use their copyrighted product in a market (like the online market), which they haven't yet entered, but very well might.
Therein lies the problem.
When copyright holders can stifle creativity, even in the absence of any actual harm, our copyright laws are not striking the right balance.
Barring divine (or congressional) intervention, the only hope for Scrabulous is a licensing agreement with Mattell and Hasbro. Let's hope the companies come to their senses and realize that Scrabulous is the best thing to happen to Scrabble since the invention of the triple-word score.
As any Facebook participant will tell you, Scrabulous is one of the social network's most addictive features. Here's how it works: A player can challenge friends to online Scrabble games, complete with an exact Scrabble replica, a virtual dictionary and Wikipedia link to the rules of Scrabble.
The problem? This is one huge copyright infringement.
Hasbro and Mattell jointly own the rights to Scrabble. They do not take kindly to others making money off of their product.
Of course, anyone can understand authors wanting to retain control over their products. That's the whole point of copyright -- Congress and the Framers of the Constitution hoped to spur creativity by giving authors protection for their work. At the same time, the laws put a time limit on how long an author holds that exclusive right. This balance recognizes that creativity often begets creativity, and every creative work, at some point, must become a public good.
Scrabulous, unfortunately, came out too early, well before the copyright in Scrabble expired. But despite its fairly blatant infringement of the Scrabble copyright, there is no indication that the popularity of Scrabulous has harmed the sales of Scrabble. In fact, many users of Facebook say that they bought Scrabble only after playing Scrabulous.
So, Scrabulous is increasing sales of Scrabble. And yet Mattell and Hasbro can still sue? Under the twisted copyright regime, yes. Unlike with most lawsuits, Mattell and Hasbro do not have to show that the defendants are harming them right now. They only have to show a theoretical harm to their ability to use their copyrighted product in a market (like the online market), which they haven't yet entered, but very well might.
Therein lies the problem.
When copyright holders can stifle creativity, even in the absence of any actual harm, our copyright laws are not striking the right balance.
Barring divine (or congressional) intervention, the only hope for Scrabulous is a licensing agreement with Mattell and Hasbro. Let's hope the companies come to their senses and realize that Scrabulous is the best thing to happen to Scrabble since the invention of the triple-word score.
Wednesday, March 19, 2008
Gun Rights and Barack Obama
In his speech yesterday, Barack Obama challenged each and every one of us to commit ourselves to building a better society. He gave us hope for the future.
At almost the same moment, just a few hours south from Philadelphia, the Justices of the Supreme Court explained exactly why our hope may be misplaced.
During oral argument in District of Columbia v. Heller, the Justices gave every indication that they would uphold an individual right to bear arms. Struck down in the process: D.C.'s near-ban on handguns.
Let me repeat that -- the unelected Justices will strike down a handgun ban that was passed by an elected city council. That was passed in response to the public's concern about an epidemic of crime. That was passed in a city with one of the highest murder rates in the nation.
Judicial restraint? Out the window.
But the hypocrisy of certain members of the Court is not even the issue here. Remember, this is the same Supreme Court that struck down local school desegregation plans. We shouldn't be surprised.
The problem is the real impact of these decisions. On the streets surrounding the Supreme Court, just blocks away from that imposing marble structure, Americans live in deep poverty. They attend segregated schools. Their neighbors have guns. And the Supreme Court just made their lives a little more dangerous.
Barack Obama showed us that underclass yesterday. He acknowledged America in all its ugliness and beauty. He told us we have the power to change our society for the better.
But as long as an unelected institution continues to make decisions without regard for their real-world impact, the time for change may never come.
At almost the same moment, just a few hours south from Philadelphia, the Justices of the Supreme Court explained exactly why our hope may be misplaced.
During oral argument in District of Columbia v. Heller, the Justices gave every indication that they would uphold an individual right to bear arms. Struck down in the process: D.C.'s near-ban on handguns.
Let me repeat that -- the unelected Justices will strike down a handgun ban that was passed by an elected city council. That was passed in response to the public's concern about an epidemic of crime. That was passed in a city with one of the highest murder rates in the nation.
Judicial restraint? Out the window.
But the hypocrisy of certain members of the Court is not even the issue here. Remember, this is the same Supreme Court that struck down local school desegregation plans. We shouldn't be surprised.
The problem is the real impact of these decisions. On the streets surrounding the Supreme Court, just blocks away from that imposing marble structure, Americans live in deep poverty. They attend segregated schools. Their neighbors have guns. And the Supreme Court just made their lives a little more dangerous.
Barack Obama showed us that underclass yesterday. He acknowledged America in all its ugliness and beauty. He told us we have the power to change our society for the better.
But as long as an unelected institution continues to make decisions without regard for their real-world impact, the time for change may never come.
Monday, February 11, 2008
The Clinton Rules
Quick, what do Aristotle, Immanuel Kant, John Rawls, Lon Fuller, and Herbert Wechsler have in common?
Even in death, none of them can believe that Paul Krugman wrote an entire column about "venom" and "bitterness" in the Democratic primary without once mentioning the Clinton campaign's after-the-fact declaration that the Michigan and Florida delegates should count.
Aristotle rejected "ad hoc" reasoning in systems; Kant held out universality (the rules should apply to every actor regardless of situation) as the first formulation of the categorical imperative; Rawls' original position holds that laws are just when a group would have agreed upon them prior to gaining knowledge of each individual's situation; Fuller argued that retroactive legislation and unstable legislation both violate the internal morality of law; Wechsler defined a principled decision as one that transcends the result achieved and applied to both parties equally.
Clinton's response: "I believe our nominee will need the enthusiastic support of Democrats in these states to win the general election, and so I will ask my Democratic convention delegates to support seating the delegations from Florida and Michigan." Take that, veil of ignorance! But see Clinton spokesman Howard Wolfson on superdelegates: "There is a role for superdelegates in our party, as per rules of our party. These are not rules we set; they predate Bill Clinton. We are going to play under the rules we are given." Uh, what?
Hey, do you think this insane duplicity could be a source of "bitterness" and "venom"? Alas, Krugman offers this disclaimer: "I won’t try for fake evenhandedness here." One question for Krugman (and the Clinton camp): why bother to include the word "fake"?
Even in death, none of them can believe that Paul Krugman wrote an entire column about "venom" and "bitterness" in the Democratic primary without once mentioning the Clinton campaign's after-the-fact declaration that the Michigan and Florida delegates should count.
Aristotle rejected "ad hoc" reasoning in systems; Kant held out universality (the rules should apply to every actor regardless of situation) as the first formulation of the categorical imperative; Rawls' original position holds that laws are just when a group would have agreed upon them prior to gaining knowledge of each individual's situation; Fuller argued that retroactive legislation and unstable legislation both violate the internal morality of law; Wechsler defined a principled decision as one that transcends the result achieved and applied to both parties equally.
Clinton's response: "I believe our nominee will need the enthusiastic support of Democrats in these states to win the general election, and so I will ask my Democratic convention delegates to support seating the delegations from Florida and Michigan." Take that, veil of ignorance! But see Clinton spokesman Howard Wolfson on superdelegates: "There is a role for superdelegates in our party, as per rules of our party. These are not rules we set; they predate Bill Clinton. We are going to play under the rules we are given." Uh, what?
Hey, do you think this insane duplicity could be a source of "bitterness" and "venom"? Alas, Krugman offers this disclaimer: "I won’t try for fake evenhandedness here." One question for Krugman (and the Clinton camp): why bother to include the word "fake"?
Monday, January 28, 2008
A Brief Poem
How does one write a brief?
Do you try to invoke a summer's day? Smelling of earth and all-too-fleeting.
Perhaps the winter's cold? It ravages the lips and nose. Fingertips have no feeling.
Maybe a genius high? A paean to the better forces of our nature.
Or do you just try to get it done? And hope your partner does it better.
Do you try to invoke a summer's day? Smelling of earth and all-too-fleeting.
Perhaps the winter's cold? It ravages the lips and nose. Fingertips have no feeling.
Maybe a genius high? A paean to the better forces of our nature.
Or do you just try to get it done? And hope your partner does it better.
Tuesday, January 8, 2008
Dearest A,
Kudos on a fabulous post. And your excellent use of non-words as words (i.e. "prestigey successoryness"). Will you have coined the next "truthiness"? Only time will tell.
Despite all this talk of the downfall of the gilded professions, my faith in the law as an important, noble career was restored today. After swearing in newly-admitted attorneys, a judge told them to always remember that the law, at its heart, is important work. Courts decide questions that affect people's property, liberty, and, in the most extreme cases, their very existence. This judge, sitting way up on the bench, knew exactly why the law is so attractive to so many people. And he elucidated it perfectly.
It's easy for a young associate to forget why she became a lawyer as she's mired in stacks of insurance documents. But today, at least for a little while, I remembered. And it made me proud.
Love,
Sammy
Kudos on a fabulous post. And your excellent use of non-words as words (i.e. "prestigey successoryness"). Will you have coined the next "truthiness"? Only time will tell.
Despite all this talk of the downfall of the gilded professions, my faith in the law as an important, noble career was restored today. After swearing in newly-admitted attorneys, a judge told them to always remember that the law, at its heart, is important work. Courts decide questions that affect people's property, liberty, and, in the most extreme cases, their very existence. This judge, sitting way up on the bench, knew exactly why the law is so attractive to so many people. And he elucidated it perfectly.
It's easy for a young associate to forget why she became a lawyer as she's mired in stacks of insurance documents. But today, at least for a little while, I remembered. And it made me proud.
Love,
Sammy
Monday, January 7, 2008
Wow, Sometimes Posts Just Write Themselves
When I'm looking for hard truths backed up by clear evidence, you know the first place I go? The New York Times Fashion section.
I mean, some might look at this article, prominently posted on the front of the NYT website early on a Monday morning, and conclude that it is a fact-free trend piece specifically designed to bait New York lawyers and get to the top of the most emailed list. True, there are weasel words ("say many ... lawyers", "Many young associates ..."), evidence-free assertions ("Students are focusing now on starring in their own creations" ... uh, really?), and hilariously broad assumptions about youth culture ("Their attention span, everything, is instant feedback: quick, quick, quick"). But, really, check out this hard-hitting data:
The pay is still good (sometimes very good), and the in-laws aren’t exactly complaining. Still, something is missing, say many doctors, lawyers and career experts: the old sense of purpose, of respect, of living at the center of American society and embodying its definition of “success.”
Well, the Sense of Pride Index is down 42 points over the last six months and the Inflation-Adjusted Success Definition Embodiment Scale is the lowest it's been in decades. And don't even get me started on the Mueller-Greggs Erosion of Cachet numbers. Other evidence:
Nationally, the number of law school applicants dropped to 83,500 in 2006 from 98,700 in 2004—representing a 6.7 percent drop between 2006 and 2005, on top of the 5.2 percent slip the previous year, according to the Law School Admission Council.
In the year I applied (2002), law schools recorded their highest number of applications ever. So in 2002, by the article's logic, the law was at the height of its prestigey successoryness. Five years later and everything's gone to shit?
The rest of the article is gossipy tidbits (including an honest-to-god "somebody came up to me at a cocktail party" story!), a couple of timeless grievances, and the now-mandatory-in-every-Times-article "god, wouldn't it be great to be at a hedge fund?" boilerplate.
Okay, here' s my crack at this article: The 2001 recession made jobs straight out of college scarce. This led to a glut of law school applications, which have since abated as the white-collar economy has become stronger. Some of the applications were likely from people who would ordinarily have gone into other professions out of college, and were unfamiliar with the legal world. Meanwhile, Wall Street law firms, which have extraordinarily high levels of turnover to begin with, have recently seen a slight uptick in the number of young associates leaving. It is possible that some of this uptick is due to the people from the 2001-2002 law school glut entering the legal profession and becoming dissatisfied, although this is impossible to quantify. A reporter wishing to prey on the insecurities of young lawyers could theoretically use these tiny bits of data to spin a tale of an industry-wide decline. THE END.
(Alternate title for this blog: "The New York Times Legal Articles Blog")
I mean, some might look at this article, prominently posted on the front of the NYT website early on a Monday morning, and conclude that it is a fact-free trend piece specifically designed to bait New York lawyers and get to the top of the most emailed list. True, there are weasel words ("say many ... lawyers", "Many young associates ..."), evidence-free assertions ("Students are focusing now on starring in their own creations" ... uh, really?), and hilariously broad assumptions about youth culture ("Their attention span, everything, is instant feedback: quick, quick, quick"). But, really, check out this hard-hitting data:
The pay is still good (sometimes very good), and the in-laws aren’t exactly complaining. Still, something is missing, say many doctors, lawyers and career experts: the old sense of purpose, of respect, of living at the center of American society and embodying its definition of “success.”
Well, the Sense of Pride Index is down 42 points over the last six months and the Inflation-Adjusted Success Definition Embodiment Scale is the lowest it's been in decades. And don't even get me started on the Mueller-Greggs Erosion of Cachet numbers. Other evidence:
Nationally, the number of law school applicants dropped to 83,500 in 2006 from 98,700 in 2004—representing a 6.7 percent drop between 2006 and 2005, on top of the 5.2 percent slip the previous year, according to the Law School Admission Council.
In the year I applied (2002), law schools recorded their highest number of applications ever. So in 2002, by the article's logic, the law was at the height of its prestigey successoryness. Five years later and everything's gone to shit?
The rest of the article is gossipy tidbits (including an honest-to-god "somebody came up to me at a cocktail party" story!), a couple of timeless grievances, and the now-mandatory-in-every-Times-article "god, wouldn't it be great to be at a hedge fund?" boilerplate.
Okay, here' s my crack at this article: The 2001 recession made jobs straight out of college scarce. This led to a glut of law school applications, which have since abated as the white-collar economy has become stronger. Some of the applications were likely from people who would ordinarily have gone into other professions out of college, and were unfamiliar with the legal world. Meanwhile, Wall Street law firms, which have extraordinarily high levels of turnover to begin with, have recently seen a slight uptick in the number of young associates leaving. It is possible that some of this uptick is due to the people from the 2001-2002 law school glut entering the legal profession and becoming dissatisfied, although this is impossible to quantify. A reporter wishing to prey on the insecurities of young lawyers could theoretically use these tiny bits of data to spin a tale of an industry-wide decline. THE END.
(Alternate title for this blog: "The New York Times Legal Articles Blog")
Thursday, January 3, 2008
The Billable Burden
Dearest A,
The Times has been dishing up some good tidbits for our blog the last couple of days -- the CIA tape-destruction investigation, the Supreme Court's thoughts on cruel and unusual punishment, a college's protests against the RIAA's draconian litigation policy. We'll get to those.
First, I want to talk about something near and dear to my heart: Billable hours.
The way firm lawyers bill their time is in six-minute increments. The expectation is that between billable and pro bono hours, associates will rack up at least 2,000 hours over the course of the year. That comes out to about 38.5 hours per week.
"Hold on!," you non-lawyers say. "I work more than that!"
Well, let me finish. If you take two weeks of vacation per year, that brings the number up to 40 hours. If you don't count the ten holidays you get a year, we're up to 41.7 hours per week.
And now this is where it all gets very tricky. Forty-two billable hours a week may not sound like much. But remember two things: 1) That's the MINIMUM. 2) That's the amount of time ACTUALLY SPENT WORKING. It does not count lunches, or bathroom breaks, or time spent blogging about your billable hours. It doesn't even count work-like things you do -- cleaning off your desk, preparing bills for clients, or doing the research a partner asked you to do for the article he's writing. It only counts actual legal work you perform for an actual client. To get those specific hours up to forty-two per week, associates are at their desks every day from 9:30 a.m. until 8 p.m. at an absolute minimum.
Is the incentive there to cheat? Absolutely. Anybody who says they haven't been tempted to leave their timer running is a big fat liar.
But I see an even bigger problem -- this system is a barrier to creativity. Your success is measured by how much time you bill compared with everyone else. But you also don't want to bill too much time, since a client will notice a large bill just as much as a partner will notice a small one.
This limits your options. You can write a motion in the same way, in the same amount of time, as everyone who has come before. Or you can think about it a little more, delve into it a little more, and suffer the consequences when you charge six hours for a task that takes everyone else three.
Measuring time is a wrong-headed way to measure success. Law firms will cling to it like a baby to a bottle because it makes them goggling amounts of money. But it will continue to make young associates miserable. It will continue to stifle innovation. And it will certainly drive lawyers out of law firms.
Love,
Sammy
The Times has been dishing up some good tidbits for our blog the last couple of days -- the CIA tape-destruction investigation, the Supreme Court's thoughts on cruel and unusual punishment, a college's protests against the RIAA's draconian litigation policy. We'll get to those.
First, I want to talk about something near and dear to my heart: Billable hours.
The way firm lawyers bill their time is in six-minute increments. The expectation is that between billable and pro bono hours, associates will rack up at least 2,000 hours over the course of the year. That comes out to about 38.5 hours per week.
"Hold on!," you non-lawyers say. "I work more than that!"
Well, let me finish. If you take two weeks of vacation per year, that brings the number up to 40 hours. If you don't count the ten holidays you get a year, we're up to 41.7 hours per week.
And now this is where it all gets very tricky. Forty-two billable hours a week may not sound like much. But remember two things: 1) That's the MINIMUM. 2) That's the amount of time ACTUALLY SPENT WORKING. It does not count lunches, or bathroom breaks, or time spent blogging about your billable hours. It doesn't even count work-like things you do -- cleaning off your desk, preparing bills for clients, or doing the research a partner asked you to do for the article he's writing. It only counts actual legal work you perform for an actual client. To get those specific hours up to forty-two per week, associates are at their desks every day from 9:30 a.m. until 8 p.m. at an absolute minimum.
Is the incentive there to cheat? Absolutely. Anybody who says they haven't been tempted to leave their timer running is a big fat liar.
But I see an even bigger problem -- this system is a barrier to creativity. Your success is measured by how much time you bill compared with everyone else. But you also don't want to bill too much time, since a client will notice a large bill just as much as a partner will notice a small one.
This limits your options. You can write a motion in the same way, in the same amount of time, as everyone who has come before. Or you can think about it a little more, delve into it a little more, and suffer the consequences when you charge six hours for a task that takes everyone else three.
Measuring time is a wrong-headed way to measure success. Law firms will cling to it like a baby to a bottle because it makes them goggling amounts of money. But it will continue to make young associates miserable. It will continue to stifle innovation. And it will certainly drive lawyers out of law firms.
Love,
Sammy
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