November 2006 Archives

Via the Volokh Conspiracy comes this quote from Chief Justice John G. "Funnyman" Roberts, Jr.:

"I like my wine French, my beer German, my vodka Russian, and my judicial system American."

Here's my version:

I like my wine Californian, my beer Irish, my vodka plentiful, and my judicial system willing to impose meaningful countermajoritarian checks on legislative and executive power.

Now you go.

GG just posted this about the "hemmorhaging" of associates at her firm. I witnessed a similar thing at my old firm (though I might not use the term "hemmorhaging"), and I've heard similar tales from several friends from various and sundry other BigLaw firms. The endemic nature of this associate attrition indicates that it might be a byproduct of the BigLaw business model rather than the result of any particular shortcomings at any particular firm. This is borne out by the fact that the overwhelming majority of associates I know who have left their firms didn't go to other BigLaw firms. As with the folks GG mentions, these associates have gone in-house, gone into entirely different legal (or non-legal practices), or just up and quit to figure out the next stage of their lives. I've also known female associates to take maternity leave and never come back.

For a young associate, particularly a first- or second-year, witnessing the outflow of senior associates is jarring. On a personal level, the ship-jumpers are often people that the junior associate has become friends with, or at least enjoyed having around. On a professional level it also shakes the junior associate's confidence in their own long-term prospects at the firm and the firm's general ability to retain talent. I think the problem here isn't the fact that associates quit. It's the fact that law students don't realize how common this is when they decide to join a large firm. Firms obviously don't advertise their attrition rates, and some go so far as to claim that they want everyone they hire to make partner. But, as has been said many a time, law firms operate on a modified pyramid scheme model. As a matter of simple mathematics, no law firm is sustainable if every one of their associates, or even a majority of their associates, make partner. The model presumes that many associates will opt out along the way.

In addition to law firms' failure to acknowledge this reality, difficulty often arises where firm management fails to adequately deal with its ramifications. As associates leave partners are often left with both a shortage of available talent to handle the firm's workload and a great deal of head-scratching as to how the firm might retain associates for longer stretches. Again, these problems trickle down to associates, who are slammed with inflated workloads and once again left with uncertainty as to the firm's ability to maintain its staff. The problem may be further exacerbated by the claims in this article, sent to me by Tom, which argues that the large firm model encourages partners to jealously guard the types of knowledge transfer that would enable associates to contribute more to the firm.

Associate attrition doesn't have to be a problem. But if law students, associates and partners were more open about the fact that not every associate is going to make it through the eye of the needle, the psychological effects of attrition could be minimized, and firm management might be more successful at striking a balance between having productive, happy, and semi-long-term associates and facilitating exit for people who aren't on the partner track.

I'm a regular reader of Ann Telnaes' political cartoons, which appear weekly at Women's eNews and semi-regularly on Slate. Not surprisingly given these venues, Telnaes is a traditionally feminist cartoonist, and tends to focus on women's issues (though not exclusively, as a quick perusal of her archive reveals). I generally like Telnaes' work. Her style is very appealing, her "gags" are generally effective, and I tend to agree with what she has to say. Although she does tend to use the cynical, coffee-and-briefcase-toting, pear-shaped businesswoman more often than she might need to.

It isn't often that a political cartoon makes one laugh out loud, which is why this offering, which I saw yesterday, left quite an impression on me:

Startling in its juvenile simplicity, this cartoon boldly equates Bush's appointment of a contraception opponent as the family planning chief at the Department of Health and Human Services with Bush mooning a woman. There he is, right there, showing his ass to a pear-shaped businesswoman, with a grumpy Dick Cheney driving the car.

I spent the better part of yesterday giggling to myself about this before I realized what a shoddy piece of political cartooning it really is. Yes, Bush's appointment of this guy shows disrespect for people who have the wacky idea that contraception is an important part of family planning (many of whom are women). But the presidential ass gag is completely devoid of context. Where's the connection between contraception/DHHS and the President's ass? There isn't one. Telnaes chose a generic sign of disrespect to comment on an objectionable action by the President. But the whole thing seems very hastily conceived (and perhaps hastily executed -- note the grammatical error on the newspaper).

I pondered this all night until this morning when I saw this on Slate:

It's a whole nother Ann Telnaes cartoon, dated one day later than the Bush's ass cartoon. But it's the exact same cartoon. Only this time, the disrespectful gesture involves condoms, a form of contraception, rendering the gag relevant and contextual. So what's the deal here? Did Telnaes send the ass cartoon off to print, realize she could do better, and then fire off another version for other publications? Is the ass cartoon an earlier version that was never meant to go out? Is the President's ass too risque for Slate?

I don't know the answers to these questions. All I do know is that the first cartoon still makes me giggle.

While the public hullaballoo overthe FCC's anti-indecency crusade died down quickly after Chairman Powell stepped down (not to mention the revelation that the Parents Television Council was single-handedly responsible for the overwhelming majority of FCC complaints, which happened at about the same time), apparently the objectionable FCC rules and practices have remained in place, and the networks still aren't happy about it. Fox, NBC, and CBS have all taken various indecency rulings to the Second and Third Circuits in litigation that could finally test the constitutionality of the FCC's content-based regulatory powers (story here). Exciting stuff.

If any of the judges or clerks who'll be working on these cases are reading this, and are interested in an exhaustively researched, analytically unassailable and compellingly written article on this subject, I heartily recommend 20 Berkeley Tech. L.J. 341 (2005).

Recently, my practice of sneezing into my sleeve was called out and questioned by my co-clerk. I explained to her that I had been doing this for several years, after learning the technique from a former co-worker who had been a nurse. It was a way, I explained, of keeping the sneeze-funk off my hands, even if it seemed unorthodox. My co-clerk accepted my explanation, but still seemed somewhat skeptical.

And so, I bring you all this video made by people who seem to know a thing or two about a thing or two, propagandizing the public acceptance of sleeve-sneezing (and sleeve-coughing). It's informative and humorous, just like the Constitution.

For vindication of another of my odd, oft-criticized, but pragmatically sound habits, see the last line of Dan Melia's letter here.

The Anthony Kennedy Bobbleheads I mentioned earlier are now out and about. As I write this the eBay auction is at $152.50 with about ten and a half hours left. I've decided that I'm not the kind of person who'll spend upwards of $150 for a silly Supreme Court toy. But the scary thing is, I was seriously considering it.

I think what finally turned me away was the prospect of having this conversation in my office for the rest of my life:

Office visitor: Who's this bobblehead supposed to be?
Me: Justice Kennedy.
OV: Where did you get it?
Me: eBay.
OV: How much did you pay for it?
Me: $213. Plus shipping.
OV: [Looks away uncomfortably.]

I have also decided that I hate The Green Bag for their stupid bobblehead practice. They've set it up so that the only people who have a prayer of receiving a Supreme Court bobblehead in the usual way are subscribers. Not all of their subscribers, mind you, but a randomly selected subset of subscribers.

Here begins my marginally relevant rant about law journals. We have these wonderful things called online research services. They live on the Internet and provide instantaneous access to all the law journal articles you'd ever want to read. You can even do searches to make sure that only articles you're interested in come up. Unless you're a law library, a court, or an extremely affectatious law firm, there's no point in actually purchasing a subscription to a law journal. Subscriptions are expensive, they take up space, they turn into breeding grounds for harmful microorganisms as they decay, and the chance that you're going to want to read every article in a particular volume -- everything from the latest esoteric piece about international intellectual property laws to "LOL Harry Potter" -- is vanishingly small.

So, the fact that The Green Bag engages in the supreme dickery of forcing would-be bobblehead owners to engage in the archaic practice of subscribing to a law journal in order to be on the bobblehead list, and then doesn't even guarantee the bobbleheads to all of its subscribers, is simply unforgivable. And I'd even venture to guess that a not-insubstantial subset of The Green Bag's bobblehead recipients aren't interested in Supreme Court bobbleheads, so these rogue subscribers are just being handed a golden opportunity to engage in some good old-fashioned eBay rape.

The Green Bag claims to produce Supreme Court bobbleheads "for the joy of it." But to me they bring nothing but rage.

According to this article about self-proclaimed "Jedi Knights" demanding recognition for their religion from the UN, 390,000 people listed their religion as "Jedi" in the 2001 UK Census. This makes Jedi the fourth largest religious group in Great Britain.

The Force is dumb with these ones.

Thanks Religion Clause.

Yesterday I gave a presentation to my co-clerk and the externs about IP law. The presentation was titled "Intellectual Property: WTF?". A propos of nothing, the final slide of the presentation included this picture. This led to the following conversation between one of the externs and myself:

Extern: Where did you find this?
Me: I did a Google image search for "monkey riding a dog."

[I submitted this article to Slate over the weekend, but they don't seem to be interested in it, so I bring it to you in more limited release.]

Last week, when George Allen yielded the Virginia Senate race to Jim Webb and handed the Senate to the Democrats, he threw in a Bible reference during his concession speech. As he thanked his family and supporters and provided some feel-good platitudes for the people of Virginia, he also cast his defeat in Biblical terms: "The Bible teaches us that there's a time and place for everything. And today, I've called and congratulated Jim Webb and his team for their victory. They had the prevailing winds." Allen was no doubt referring to the beginning of Ecclesiastes 3, which you may know as the song "Turn! Turn! Turn!" by the Byrds. The opening lines are familiar and relatively unremarkable: "To every thing there is a season, and a time to every purpose under heaven."

Allen isn't the first politician to use Ecclesiastes 3 on his way out the door. Back in March, when Andrew Card resigned as White House Chief of Staff, he began his speech with an even more explicit citation to the verse: "Mr. President, Ecclesiastes reminds us that there are different seasons, and there is a new season." In June 2005, when David Wilkins resigned from his 25-year stint in the South Carolina State Legislature to become the U.S. Ambassador to Canada, he dropped an Ecclesiastes 3 citation in referring to his replacement as Speaker of the House. Former California Attorney General Dan Lungren also recited the quote when he conceded the 1998 California Governor's race to Gray Davis (though the time for Gray Davis would be cut short).

Using Ecclesiastes 3 in the context of resigning or conceding isn't exactly routine practice, but it's common enough to be noticed. So, why does the Bible's pronouncement that everything has its time keep showing up to usher politicians out? Here are a few theories.

First off, it's a relatively safe Bible citation. As a repository of the wisdom of King Solomon, Ecclesiastes 3 is philosophical rather than dogmatic. In fact, it's the opposite of dogma. How can you make rules out of alwayses and nevers when there's a time for everything? Indeed, Ecclesiastes 3 borders on the existential. As such, conservative politicians trying to stay friendly with moderates (like Allen with his long-fabled and still-possible presidential bid) can quote from it without sounding like a true Bible-thumper. Dropping a platitude like "stuff happens all the time" and linking it to the Bible is a way of showing familiarity with and respect for the Good Book without showcasing one's adherence to its doctrinal law. This, no doubt, makes it attractive for right-of-center politicians.

The verse's safety is further enhanced by its ambiguity. In a certain sense, Ecclesiastes quoters might be saying "God has a plan" without using the Bible passages that make this point a little more finely (like Proverbs 16:33: "The lot is cast into the lap; but the whole disposing thereof is of the Lord."). This is a valid interpretation for more divine-minded listeners, while other audience members may pick up on the existential interpretation. Importantly, its use as a throw-away rhetorical flourish frees the speaker from committing to one interpretation or another.

In addition, Ecclesiastes 3 absolves the speaker of responsibility. Jim Webb's camp won the Virginia Senate race because "They had the prevailing winds." Not because the voters didn't like Allen's stance on the issues, not because Webb ran a better campaign, and certainly not because of Allen's "Macaca" moment. No, Allen was just a victim to the winds of change, against mere mortals are powerless. Invoking Ecclesiastes 3 absolves politicians of blame for losing elections or being forced out of jobs.

Finally, using Ecclesiastes 3 lets the speaker take a subtle swipe at the new guy. The lines following the opening of Ecclesiastes 3, (those that make up the verses of the Byrds song rather than the chorus) make it clear that the more specific point of the verse is that there is a time for good things and bad things. A time to love, a time to hate. A time to be born, a time to die. A time to kill, a time to heal. Presumably, the smiley-face times happened while the politician was still in office, and the lousy times are about to begin now that he's leaving. Put more concretely, Allen was telling the people of Virginia that, now that Jim Webb is representing them, they'd better get ready for tearing down, weeping, and refraining from embraces. Given the requisite graciousness and magnanimity in giving up one's seat of power, it's nice to be able to slip in a Biblical dig at whoever forced you out.

This keeps popping up on all of my law geek news sources, and I think it's an interesting case. Wiccan widows are suing to force the federal government to allow the Wiccan pentacle, a five-pointed star with a circle around it, to be placed on headstones in national cemetaries. This is not to be confused with the Satanic pentagram, the upside-down five-pointed star with a circle around it (and sometimes the face of Baphomet superimposed on the star) which showed up with an alarming frequency and an even more alarming lack of context in a number of hair band music videos in the 1980s.

The government allows all kinds of other religious symbols on national cemetary headstones. And yet, this isn't a case of the gubment refusing to recognize the legitimacy of Wicca as a religion. In fact, as the AP reports:

The Army allows Wiccan soldiers to list their faith on dog tags, Wiccan organizations are allowed to hold services on military installations and the Army Chaplains Handbook includes an explanation of the religion, attorneys said.

It'll be interesting to see how this plays out.

I'll also point out that I was going to use a pun on the word "Wicca" as the title of this post and call it something like "A Wicc-ed Lawsuit," but some cursory research revealed that the word "wicked" actually comes from the word "Wicca," and therefore it wouldn't be a pun at all. You hear that Chemerinsky? "Seminal" comes from "semen," so referring to Griswold v. Connecticut as a "seminal case" isn't actually a joke.

That's all.

Oh well. I guess we'll miss out on the opportunity to have our freeways clogged with traffic and our already over-taxed public transit systems crippled as the Olympic games spread their boring filth throughout the Bay Area. Looks like Los Angeles and Chicago will have to fight over who gets to host seven hundred different kinds of swimming races, all competed in by the same twelve people.

Ye gods, do I hate the Olympics.

Dr. M and I finally watched X-Men 3 this evening. What a piece of crap. Fortunately we heard all the bad reviews going in so we weren't expecting much and were able to have fun with our cracking-wise.

The most entertaining thread in our couch-bound heckling began when I posited the question of whether Wolverine's mutton chops talk to each other. At first I envisioned nothing more than a "shampoo is better"-style argument as to which was the better mutton chop, but then Dr. M came up with the idea of one mutton chop being good and the other being evil, each trying to influence Wolverine. Later, as Cyclops angstily motorcycled off in search of Jean Grey's disembodied consciousness (one of the great things about this movie is that the Xavier School, Alkali Lake, Jean Grey's childhood home, and San Francisco are all within ten minutes of each other), Dr. M attributed to Cyclops a plan to grow his own pair of mutton chops that would fight Wolverine's mutton chops. Unfortunately Jean Grey ate Cyclops before the mutton chop battle could be joined.

While I'm on the subject I should also mention that X-Men 3 inspired the following hilarious (to my eyes) MySpace bulletin from my ne'er-do-well brother:

Subject: Movies like X-Men 3 make me was I had ten thumbs.
Body: 'Cause all them shits would be down.

He later posted a follow-up bulletin in which he proclaimed that he'd rather kill a thousand puppies than watch X-Men 3 again.

(Spoilers, durrr.)

Last night, the creators of Lost and the marketers at ABC once again revealed their amazing ability to oversell themselves. The "Mid-Season Finale" (referring to an odd scheduling move in which the show, after six consecutive new episodes, is taking a break until February when it will pick up with thirteen more consecutive new episodes) was essentially billed as the "Best Episode of Lost Evar," and promised a truly shocking cliffhanger that would change the feel of the entire show. What the network delivered was an hour devoted to finding out more boring details about Kate's past and more tedious Jack-Sawyer-Kate developments.

While the Jack plot of the story was somewhat interesting, in the end it submitted to the unbearable Kate-Sawyer storyline. The Locke-Sayid-Desmond storyline, if it can be called that, was really nothing more than a set-up for the mystical adventures these folks are going to have in the latter portion of the season. And yet, the two or three scenes involving these characters were hands-down the most compelling portions of the episode.

So, what do we learn? During her life as a fugitive, Kate assumed a false identity, married a police officer (who was played by a guy that everyone seemed really excited about -- I guess he was on Firefly or something), decided she couldn't be a housewife after all and ran away again. She's so conflicted!

The big shocker? KATE AND SAWYER HAVE SEX!!!! The creators of the show seem to be missing out on something big here. Lost isn't Dawson's Creek. The amazing development that will alter the course of the show's universe can't be two characters hooking up. In the long list of mysteries that Lost foists upon its viewers, the mystery of whether Kate is in love with Jack or Sawyer ranks very, very low. Making this the centerpiece of the show's hyped-to-death mid-season finale is profoundly cheap.

As for the Jack story, while it had some nice moments ("At least you won't have to be disappointed for long," punching out the guy in the operating room, etc.), in the end it did nothing more than add a love-triangular element to the independently proceeding Kate-Sawyer plot. After Jack is allowed to "escape" so he can see Kate and Sawyer in the aftermath of their humping, we're led to think that he's willing to remove Ben's tumor because, now that he has no chance with Kate, he may as well leave the Island. Instead, OMG, he goes Bakersfield chimp in the OR to free Kate.

But will Sawyer get shot? Hopefully not. Will they shoot Kate instead? One can only dream.

In honor of the resignation of Defense Secretary Donald Rumsfeld, I thought I'd post a link to one of my favorite Intertron humor bits: Rumsfeld Fighting Technique.

The people of the City of Seattle have rejected a ballot referendum that would have outlawed lapdances in the city. Way to go, Seattle.

The referendum would also have mandated brighter lights, a tip jar instead of direct contributions to dancers, and restrictions on VIP rooms. Needless to say, this would have constrained the economic vitality of Seattle's many exotic dancers.

I think "Asia" put it best in this quote from yesterday:

"We already have enough rules," said Asia, her sparkly eyelashes flaring in the club's black light. "The four-foot rule will mean I can't make a living. Who is going to pay $20 to stand four feet away and watch me dance? No one[, that's who]."

More info on "Asia":

She makes about $48,000 a year, performing 20 or so lap dances a night for software writers, college kids and the occasional fisherman. It is a good living, she says, for a single mom with a 4-year-old daughter.

You've taken a stand for Freedom, people of Seattle. I salute you.

Profanity okay on news shows, but not awards shows or fictional shows.

What's really disturbing about this is the fact that the specific use of profanity in question arose during an interview with a Survivor contestant. Hardly the type of hard-hitting journalism that would warrant departure from indecency standards to adequately convey the raw power of the underlying facts. Which is not to say that an additional line should be drawn within news stories, but if a Survivor contestant can call someone a "bullshitter" on a morning news puff show, a sitcom character can drop an F-Bomb now and then.

I giggled every time she said "New direction."

(Say it three times fast.)

You know what's annoying? Cutesy titles for law review articles. You what's even more annoying? "Best ____ Ever!!!" You know what's super duper annoying?

This.

Dave Hoffman now joins Benjamin Barton on the list of legal scholars I'd like to punch.

Accepting the challenge from Maisnon:

In re Dembiczak:
Motivation to combine
Makes it obvious.

Cohen v. Calif.:
The First Amendment Protects
Curse words on clothing.

When marriage pitted
Loving against Virginia,
Loving won, of course.

Only in Texas
Would it be called Two Pesos
And not "Dos Pesos."

And, in honor of Dr. M:

The Tarasoff rule:
To prevent harm to others,
Tell on your patients.

I may have more tomorrow.

The Yale Law Journal Pocket Part published this interesting essay by my co-clerk today. The piece discusses this year's various ballot initiatives attacking judicial independence, and addresses the threat these initiatives pose to the supremacy of federal courts on matters of constitutional law (viz. Cooper v. Aaron). I highly recommend giving it a read, regardless of whether your state is considering such an initiative.

Also, mad props to my co-clerk.

I call it subtle, Dr. M calls it "obscure," but I think we both agree on one thing: unfunny!

The (corpulent) butt of the joke in this strip could be any of America's growing number of high-falutin' patent law professors, who think that learning the philosophical underpinnings of patent law is more important than learning how to be a patent lawyer (or judge). But for the specific incarnation I chose Mark Lemley, Stanford Law School's favorite patent professor, controversially pilfered from Boalt a few years ago with promises of private school paychecks, proximity to his wife's place of employment, and all the Doritos he could eat. Lemley "visited" Stanford while I was at Boalt, promised that he would return the following year, and then didn't. Lemley is not a very popular fellow among the Boalties.

Turning to the other aspect of the strip -- The House of Representatives recently passed H.R. 5418, "To establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges." The pilot program would involve a handful of District Courts and allow district judges to request to be designated as "patent judges," with all patent cases in those districts going to those judges. The bill also earmarks funds for special training programs for the judges and their clerks, to help them understand the delicate mysteries of patent law. Hopefully these programs won't be run by actual patent law professors, elsewise we might start seeing claim construction orders posing the question of whether we really need intellectual property protection anymore.

We already have a specialized federal court of appeals just for patent cases, that reversal factory known as the Federal Circuit. The thinking behind the House bill appears to be that there will be fewer reversals at the Federal Circuit if district judges have more expertise in patent law. Prudential considerations regarding my current state of employment prevent me from fully voicing my opinions on this issue, but let's just say I'll be keeping an eye on things to see how this pans out.