March 2007 Archives

On Wednesday night I attended a gathering of Bay Area blawgers hosted by the High Tech Law Institute at Santa Clara University and organized by Professor Eric Goldman, the institute's director. The event was designed as half discussion and half meet-and-greet, though unfortunately I had to leave early to catch a train and therefore missed most of the socializing. The discussion, however, was very interesting. It proceeded as a round-table discussion about the nature of legal blogging and the various unique issues faced by attorneys who blog. As can be expected when you get 45 law-types into a room together, the discussion was dominated by a handful of people, but there were comments from a large number of attendees. My participation was limited to one or two wisecracks and a few funny/boring stories.

In light of the fact that almost everyone there was representing a blog, a large part of the experience was observing the different types of legal blogs, and what different blawgers hope to gain from the practice of blawging. There were a few people whose blawgs were practically a fulltime job, or at least a significant portion of their professional life. In my case, of course, I do everything I can to keep the blog separate from my job, and never (as far as I can tell) blog about things I'm working on or have worked on. This is due in part to the way this blog evolved -- it began as a supplement to the comic strip but quickly became the main focus of my online identity, but all the while retained a very personal nature. Once I graduated from law school and could no longer blog about the law student experience I made an effort to increase the frequency of posts dealing with legal issues, but these have always been interspersed with personal anecdotes and silly pictures of my cats.

To be sure, there's a part of me that fantasizes about becoming the next Dahlia Lithwick, so in a sense I'd like to cut my teeth as a legit legal writer by turning this thing into a more fully developed and formidable legal blog. This may or may not happen, particularly in light of the self-censorship that legal bloggers of all sorts seem to be stuck with. Despite the fact that I've tried valiantly to anonymize this blog (though, frustratingly, if you Google my name this is the first thing that comes up), I'm always careful never to blog about anything that might relate to a case I'm working on or may work on in the future, whether it's my views on a particular legal issue or a comment that might be viewed as critical of a particular party.

The issue of self-censorship came up at Wednesday's event, and the discussion was very interesting. The group generally acknowledged the need to self-censor in certain respects but also discussed the effect that this has on a blogger's credibility, a conflict that many of us found very troubling. This brought up the issue of whether blogging anonymously is the answer to self-censorship. In response to this question, there were two great points: (1) Blogging anonymously may also affect your credibility, since you're not taking ownership of the things you say, and (2) If you keep an anonymous blog and then blog willy-nilly, you run the risk of your identity being eventually discovered, which might be a worse scenario than identifying yourself at the outset and watching what you say.

Other topics of interest were what voice you choose to blog in (my propensity for pottymouthery and my unhealthy fascination with exotic dancing probably aren't exactly professional assets), the organic development of blogging etiquette, and (just as I was leaving) the possible legal pitfalls of running a blog. This latter topic was particularly revealing, addressing things like people posting copyrighted or defamatory content in the comments section (please don't do those things, by the way).

All in all I greatly enjoyed the event, my only complaint being that I didn't get more of a chance to socialize with my fellow nerds. Although a highlight for me occurred before the discussion, when Boalt Professor John Steele recognized me not only as a Boaltie but as the school's erstwhile cartoonist.

I just got back from New York, where I attended the wake and funeral for my grandmother who, at age 90, died in her sleep. Not much more you could ask for out of life, I say. It was an opportunity to see my mother's extended family, which is a very rare occurrence for me. I'm one of only two (out of fourteen) cousins who doesn't live on Long Island. In fact, due to my stubborn insistence on living in the state where I grew up* and my disinclination to spend time on the other coast, this weekend marked the first time in twenty years that all fourteen cousins were in the same place.

Most of my mother's extended family, in fact, lives in Massapequa or the surrounding area. According to my brother there are actually five cities (or "villages" or whatever) on Long Island that have the word "Massapequa" in their name, and the people of Nassau County take these divisions very seriously. For example, on Saturday, my brother and I were trying to find the funeral home, which we had been told by our uncle was on a particular street two blocks north of another street, and bore the name "Massapequa Funeral Home." When we got onto the street on which the funeral home was supposedly located, we drove two blocks and saw nothing but drug stores, coffee shops, and other such commercial, non-death-related establishments.

My brother then poked his head out the car window and had the following conversation with a guy on the sidewalk:

My brother: Do you know where Massapequa Funeral Home is?
Guy: [Incredulously.] Massapequa? This is Massapequa Park. What you need to do is make a left here and drive down past the reserve. You're probably looking for the place on Broadway.
My brother: Okay, so there's no funeral home on this street?
Guy: Oh yeah, it's right there. [Points to a funeral home not fifty feet away from us.] But this is Massapequa Park.
My brother: Okay, thanks. [Drives fifty feet to funeral home, which has a large sign out front that says "Massapequa Funeral Home."]

My theory is that people on the East Coast like to give directions because they like the feeling that they know more than the person they're talking to, and it's an added bonus when they can actually point out a mistake that the person seeking directions has made. This guy just reached a little too far.

* The New York-centricism of my mother's family is so strong that one of my relatives actually asked me whether I considered myself more of a Californian than a New Yorker, whereupon I explained to him that I have never, in fact, lived in New York. I believe I had to make this clarification at least twice, possibly three times over the course of the trip.

While studying for her licensing exam, Dr. M just came across this passage in one of her books, which she plans on showing to our own brats eighteen years from now. We're both disturbed by the idea that all of our teenage angst was predictable and useless, and deconstructed nearly a hundred years ago:

"Adolescents, with their new powers of abstract reasoning, often spend time constructing grand religious, ethical, and philosophical theories. Because adolescents have limited life experience, these theories are often unsophisticated and naive. In fact, according to Piaget, adolescents are prone to formal operational egocentrism, or a rigid insistence that the world can become a better place through implementation of their idealistic schemes."

Formal operational egocentrism. So that's what that's called.

Is anyone else getting a sense of desperation from the Lost powers that be? Here is this week's jabberjaw.

Last night's episode was teased as revealing some major connection between two characters. Most viewers likely anticipated that they would finally reveal that Jack and Claire are half-a-siblings, something that just about everyone has been speculating about since Season One. Really, this was probably the least satisfying "shocker" of the series. Everyone thought Jack's dad was Claire's father, so when it turned out to be true, it was a huge "Yeah, and...?" moment. They didn't even add any sort of bizarre twist to it. Very disappointing.

Next week's episode promises to reveal how Locke ended up in the wheelchair. I anticipate that it will be dramatic and meaningful, but this pre-emptive reveal essentially removes all the suspense from the episode. Up until now, every Locke-flashback episode has had the additional tension of "Will Locke become a paraplegic in this episode?" See, e.g., "Will Locke get shot by the con men, or perhaps get hit by a car as he chases after Peggy Bundy?"; "Will Locke get shot by the undercover sheriff's deputy?" But now, we know that Locke-of-the-past ain't gonna be walking by 11:00 p.m. next Wednesday. It's a really dumb way to tease the episode, especially when they could have teased it just as effectively by simply creating the possibility of explaining how Locke became wheelchair bound.

The theme of the previews during the latter portion of this season has been specific, concrete promises that, as I said, give the impression of a network desperate to get people to tune in the following week. If the episodes themselves were compelling enough, this cheap baiting wouldn't be necessary. And it makes me feel like a chump for watching the show, like I'm a mule following a carrot on a stick (or a polar bear pressing the right sequence of buttons and switches to get a fish biscuit). To be sure, viewers of serial mystery-based shows are undeniably carrot-chasing mules, but the networks don't have to call attention to that fact.

In conclusion, Lost is increasingly dumb. But there were some good things in last night's episode and I'm going to grudgingly keep watching. At least until the end of this season.

It seems the beleaguered Depauw Chapter of the Delta Zeta sorority, which made headlines last month for tossing out the riffraff, has itself been tossed off the campus. Way to go, Dr. Bottoms!

Be sure to check out the Delta Zeta website for their side of the story. The short version is "Deny. Deny. Deny."

In a stunning display of editorial efficiency, I wrote a more sober version of my previous sarcastic post, submitted it to Slate this morning, and received a rejection within thirty-two minutes. I now set it forth forthwith.

The Constitution is Not a Strike Zone

As Supreme Court Justices travel the country ingratiating themselves to the American public, it's only natural that they would turn to baseball, to help them along the way. During a visit to Tampa Bay last week, Justice Samuel Alito -- the Court's newest member -- did just that. Not only did Alito throw out the first pitch at a Yankee-Devil Ray game, but he later gave a speech littered with baseball imagery. Of particular note was his comment on whether he believed in a "living Constitution," the notion that the Constitution evolves over time as society changes. On this subject, the freshman justice quipped: "Umpires face this very same problem. For example, do we want a living strike zone?"

In addition to carrying forward his baseball activities from the day before, Alito was echoing a sentiment previously expressed by Chief Justice John Roberts. Roberts, during his Senate confirmation hearings, famously compared the proper role of a judge to that of an umpire, stating that "Judges are like umpires. Umpires don't make the rules, they apply them." He also stated that the job of the umpire is to "call balls and strikes and not to pitch or bat."

Roberts' baseball analogy scored him major PR points and has since become a constant refrain as commentators assess his performance as Chief Justice. However, the analogy, while quaint, doesn't withstand much scrutiny. As Senator Joe Biden quickly pointed out during those same hearings, there are many instances where Supreme Court Justices, unlike umpires, "get to determine the strike zone." Biden astutely divided the role of a judge into two functions -- interpretation of the law and application of the law. Unlike the rules of baseball, which are clearly defined, the Constitution has terms like "cruel and unusual," "due process" and "unreasonable" that must be interpreted before a call can be made. Roberts' analogy glossed over the interpretative function, which has been the hallmark of the Supreme Court's role for most of its history.

The reason that Biden wasn't able to derail Roberts' baseball metaphor -- apart from the fact that the media loves a good metaphor -- is that Roberts wasn't using baseball in a doctrinal sense. Roberts' statement that a judge's job is to "call balls and strikes" had nothing to do with how those calls are made. Rather, Roberts was emphasizing, in a colloquial way, the notion that judges make decisions, not law. Biden's nitpicking about interpretation and application, while correct, was off topic.

Unfortunately, this wasn't the case with Alito's follow-up. When Alito ham-handedly tried to apply the baseball metaphor directly to constitutional interpretation, he struck out. In rejecting the notion of a living constitution by comparing it to the absurdity of a living strike zone, Alito appeared to be defending "originalism," the doctrinal adversary of the living Constitution, which states that the provisions of the Constitution should be given the meaning that would have been given to them at the time they were drafted. Here, Biden's criticism becomes significant. Alito can't use a metaphor that skips over interpretation to rationlize a theory of constitutional interpretation.

And originalism does offer its own variety of possible interpretations. For example, Justice Hugo Black, one of the Court's great liberals, was a fierce originalist, and yet today originalism is almost the exclusive province of judicial conservatives. Likewise, today's originalists have varying responses when challenged to come up with an originalist justification for Brown v. Board of Education, considering the fact that the same Congress that passed the Fourteenth Amendment also passed segregation laws. To the extent that Alito thinks the strike zone metaphor is appropriate because the Constitution, like the strike zone, is subject to only one interpretation, he's ignoring the dissonance among his own allies.

The other problem with Alito's remark, and one that takes it further away from Roberts' comment, is its underlying arrogance. Part of Roberts' charm during his confirmation hearings was his seemingly geniune humility. As the nominee for the most powerful judgeship in the country, and by all accounts the most qualified nominee for that position in quite some time, Roberts downplayed his own significance by promoting a limited role for the Court. Whatever Robert's personal agenda was, it would be muted by his overall commitment to judicial restraint. Roberts appears to be making good on his promise, fostering unanimity by deciding cases on limited grounds.

Alito, on the other hand, boldly proclaimed that his view of the Constitution is the simplest, the most logical, the most straightforward, and the most "American" by backing it up with baseball. But all Alito was really doing with this empty metaphor was supporting his own philosophy by labelling the opposition as absurd. Indeed, Alito's comment was uncomfortably reminiscent of the infamous speech in which Justice Antonin Scalia described the living Constitution idea as "idiotic." These types of attacks, in addition to being entirely unconvincing, undermine Roberts' own desire to preserve the Court's crediblity as an institution.

Of course, the biggest problem with Alito's strike zone analogy may be that it doesn't even comport with his own views. In a sense, the strike zone is a living thing. It's defined in part by the height of the batter, and is therefore different for each player. The strike zone easily adapts to each new situation and produces consistent results. This is a view of the Constitution that originalists would find appalling.

It seems that Justice Alito agrees with Chief Justice Roberts that Supreme Court Justices are exactly like umpires, and the Constitution is exactly like a strike zone. This may sound overly simplistic, but the two newest members of the Supreme Court are right. Let us compare the strike zone to the Constitution, and the similarities will become crystal clear.

The strike zone is a conceptual rectangular area defined by four concrete, identifiable points in space. The Constitution is a legal document defined by words, many of which were written hundreds of years ago. Like points in space, words are not subject to interpretation, and it is impossible for reasonable minds to differ as to what they mean.

Like the Constitution, the strike zone is relatively easy to implement. This is why professional umpires require only five weeks of training before they can start calling balls and strikes. Similarly, practically anyone can become a federal judge after three short years in law school, just a few decades of grueling legal practice, and a perfunctory nomination and confirmation process involving only two out of three branches of the federal government.

Because the strike zone is so straightforward, there is very little debate about it among the baseball community. Everyone basically agrees that, if a pitch is within the clearly defined strike zone, it's a strike, and otherwise it's a ball. Similarly, hardly anyone has anything to say about the Constitution. Everyone is basically on the same page (no pun intended) as to what the Constitution provides for and requires, and anyone who disagrees with the nation's practically unanimous originalist majority is an idiot.

Finally, Chief Justice Roberts was correct that people don't go to baseball games to watch the umpire. It follows a fortiori that very few people would be interested in seeing a speech given by an umpire, let alone a prime time network television special devoted entirely to an umpire. This is why Supreme Court Justices hardly ever give speeches or go on TV. It's because nobody's interested in what they have to say, because their job is so simple and unremarkable.

So you see, when Supreme Court Justices downplay the importance of a vibrant federal judiciary by comparing themselves to officials in a ballgame, it only sounds like total crap. It's really a perfectly sound approach to the role of judges which is in no way a mask for a maniacal conservative agenda.

My email address is [my last name]@gmail.com. Since my last name is a not terribly uncommon Irish name, every now and then I'll get emails intended for other people with my name, who are not me, and to whom I may or may not be related. This is sort of like when I was in college and my phone number was very similar to the number for the local Catholic Church, and every now and then I'd get calls asking for the mass schedule or asking if I would administer last rites to a dying relative.*

In the past year or so I've received an e-Christmas card, a confirmation for a gynecological appointment, and an email from a nun wishing someone named Kelly the best of luck as she began a new chapter in her life as a Catholic schoolteacher. These weren't very exciting.

But, this morning I checked my email to find what appeared to be an invitation to go to the zoo this Saturday. The tentative itinerary included a bird show, a seal show, and elephants from Thailand. Needless to say, I was extremely disappointed when I realized that the zoo invitation was not for me, and even more disappointed when it turned out that the zoo in question is in Australia. I wrote back, expressing my regret at not being able to see the animals, because I'm the sort of fellow who does that sort of thing (sending substantive emails to strangers, not looking at animals). I'm now wondering what electronic misadventures my not-uncommon last name will bring forth next.

* Yes, this really happened, and yes, it totally ruined my day.

1. Locke is increasingly proving himself to be the Gilligan of the Island.

2. Communication is very important when three people are securing a very small farmhouse. If two of them find massive amounts of high-powered explosives in the basement, they should find an appropriate time to inform the third person as soon as possible, even if intervening events must be given center stage.

3. Sun doesn't seem to be affected at all by the fact that she killed someone a few days ago. It's not everyone who can go so quickly from shooting a woman in self-defense to finding creative ways to mess with people in the context of an all-or-nothing ping pong match. That woman is a cold-blooded killa, straight up.

On a subject near and dear to my heart, the kind fellows at The Smoking Gun have posted a smattering of complaints to the FCC arising from Super Bowl XLI. The complaints all focus either on Prince's silhouetted guitar-as-penis routine and/or the Snickers commercial where the two guys accidentally kiss. Here are some choice quotes:

"CBS Sports producers knew, that when the former penist [sic] named Prince brought out that guitar it wasn't going to be good." [What in God's name is a "penist"? And why is Prince no longer a penist? If she's complaining about Prince pretending he has a giant penis, isn't he still a penist?]

"One of [my children] has hoped to be a quarterback and now he will turn out gay. I am actually considering to check him for HIV. Thanks CBS for turning my son GAY." [The TV turned his children gay AND gave them HIV! Also, global warming does not exist.]

"This image only made him look extremely large which made the rest of us feel small, and unable to perform this evening." [This one just may be serious, folks.]

"I didn't turn on the superbowl expecting to be tricked into watching gay sex!" [Those tricksy gayses!]

This one is interesting only because the complainer appears to know the vocabulary of First Amendment law, even if s/he doesn't know what the words actually mean.

A lot of these complaints are poorly written and make no sense, but in defense of the complainers, it's hard to put together a compelling indecency argument when you don't have the Parents Television Council writing form letters for you.

And then you discover the manualist. A manualist, I have just discovered, is someone who plays songs by making rude noises with his or her hands. And this guy is particularly good at it.

Witch Doctor seems to be the biggest crowd pleaser, though Bohemian Rhapsody is also quite impressive. And for those of you with more discriminating sensibilities, there's Joy. You'll never look at weddings the same way.

I always thought that my ability to make noises with my hands, knees, and ears (yes, ears) was impressive, but I can't alter the pitch in any meaningful way, so I feel woefully inadequate.