June 2007 Archives

The Supreme Court issued its final three decisions of the term this morning, and pinched off a couple of steamy floaters in the process.

In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Court struck down two voluntary public school integration plans as unconstitutional because they took race into account when deciding where to assign students. The judgment was 5-4, with an extremely unhelpful Kennedy concurrence controlling the outcome. Chief Justice Roberts, writing for the conservative plurality, apparently thinks that Brown v. Board of Education wasn't really about school integration. The Chief Justice also explained that the Civil War wasn't about slavery, vanilla ice cream would taste exactly the same without sugar or vanilla, and that whole "asteroid hitting the earth" thing in Armageddon was just a minor sub-plot. In response to critics who claim that Roberts is going back on his promise to be a moderate justice rather than a maniacal precedent slasher, Roberts explained that he never explicitly promised not to overturn Brown v. Board.

Justice Kennedy's concurrence agrees with the result but hems and haws about Roberts' reasoning, tossing around a bunch of equivocations and hypotheticals and suggesting that race-sensitive school assignment programs could be constitutional in a world that exists entirely inside Kennedy's own imagination. The most immediate results of this decision, apart from the invalidation of the two specific programs at issue, will be (1) lots more litigation about such programs elsewhere, with circuit court judges hither and yon having plenty of freedom to put their own respective stinks on the issue, and (2) additional significance placed on the Supreme Court during the 2008 presidential campaign. This issue is a lot more nuanced than quota-based affirmative action, and spin doctors will be able to get a great deal of mileage out of it going forward (I mean political consultants, not the 90s alternative rock band).

In the less sexy but comparably ominous decision of Leegin Creative Leather Products, Inc. v. PSKS, Inc., the same 5-4 split eliminated one of the last surviving per se rules in antitrust law. This means that antitrust law basically no longer exists in the United States. When reporters questioned the head of the DOJ's Antitrust Division about the future of his department in light of this ruling, he said, "I ain't done shit in years" and returned to an in-progress game of Minesweeper.

Finally, in Panetti v. Quarterman, a more palatable decision to my tastes, Justice Kennedy jumped the fence and joined the liberal justices in reversing the death sentence of a mentally ill inmate. The Court held that the Fifth Circuit (home of the Great State of Texas, where the motto is "Don't mess with Texas or we'll lethally inject you where you stand") applies too strict of a standard in determining whether a death row inmate understands what's going on regarding his own execution. Justice Thomas reiterated his position that the Eighth Amendment doesn't apply to lethal injection because chemistry hadn't been invented yet when the amendment was adopted. Justice Scalia, who often brings his shotgun to court, had to be restrained from shooting the defendant himself.

The Court is now in recess until October. I'll be keeping you up to date on any interesting summer media appearances by the justices. While I imagine that the press may be done with their John Roberts puff pieces, Justice Scalia is sure to embarrass himself and the Court at least once with some sort of flippant comment or obscene gesture. I'll keep my ears up.

Apparently today is Blog About Pieces of Your Body Falling Off Day here at CementHorizon and I didn't get the memo.

But I suppose this is as good a time as any to announce that my hair is thinning in the yarmulke area.

WT was kind enough to forward me this review of Saira Rao's Chambermaid, the novel about clerking at the Third Circuit written by someone who clerked at the Third Circuit. WT was presumably prompted by the fact that I had informed him that I was reading the book and that it wasn't very good. The review is absolutely vicious and, sadly, more or less accurate.

While I'm not nearly as indignant about the book as Grimmelmann is, I agree that it's a shoddy piece of work and an utter disappointment. I won't catalogue my specific gripes here, focusing instead on broader structural failures. It's one of those rare books that misses every single one of its targets. It doesn't paint a very interesting picture of life behind the bench. It doesn't even bother explaining much of what goes on in the world of judges and law clerks. The characters don't exhibit an inch of growth or depth. They're uniformly shallow and unlikeable. The main character is dripping with suburban elitism from the very beginning, and manages to cling to it for all 270 pages despite living in the shadiest part of Philadelphia and peppering her narration with snide comments about Republicans and conservative justices. The characters don't act, they react. The story is written like a sitcom pilot rather than a novel.

The "boss from hell" stuff -- one of the book's main marketing points as as it struggled to cast itself as The Devil Wears Prada: Law Clerk Edition -- isn't even that bad. The hours are eminently reasonable, and the judge forgets all of her draconian orders as soon as she makes them, leaving the clerks free to live life more or less as they please. For example, when the judge catches the main character sneaking out to interview for her dream job at the ACLU and tells her she can't go, the main character... goes anyway! She lands the job on the spot and suffers absolutely no adverse consequences for playing hooky from work. Not exactly exposé material here, folks.

The forgettable story would be fine if the book was funny, which it isn't. The humor is forced, uncomfortable even, and the analogies are grossly overplayed. The final chapter, a slapstick account of a shivas that comes screaming out of left field, unambiguously confirms the author's lack of comedic vision. After neatly resolving every single conflict in the penultimate chapter, the author is so desperate for a punchline that she concludes with a bunch of jokes about elderly people and their wacky incontinence.

All in all, like a bad summer comic book movie, this was a book with a built-in audience and a lot of marketing hooks that failed to deliver. A wasted opportunity for what could have been a very entertaining and enlightening story.

Hey! The Supreme Court decided some crap today.

In Morse v. Frederick, the celebrated "Bong Hits 4 Jesus" case, the Court decided that the First Amendment doesn't protect the rights of public school students to advocate illegal drug use. Justice Thomas, concurring in the judgment, argued that the First Amendment couldn't possibly apply in this context because the word "bong" didn't exist in 1789.

In Federal Election Commission v. Wisconsin Right to Life, Inc., the Court held that the First Amendment prevents Congress from regulating "issue ads," as opposed to ads that unambiguously refer to a particular candidate. This means that the 2008 election cycle will be dominated entirely by MoveOn.swiftboats.org/NRA/NOW/NWA/OMGWTFBBQ. The dissenters objected on the grounds that the majority opinion didn't add enough confusion to the all-to-straightforward world of campaign finance law.

In Hein v. Freedom From Religion Foundation, Inc., the Court once again denied taxpayer standing without officially overruling Flast v. Cohen. Desperate to find a way to distinguish Flast, the majority held that the standing conferred in that case applies only to cases filed on the third Thursday of the month. Justice Thomas, again concurring in the judgment, advocates doing away with federal courts altogether.

In National Association of Home Builders v. Defenders of Wildlife, the Court ordered the parties to set aside their differences and start building fortified homes for wildlife. Justice Scalia, dissenting, argued that if wildlife needed protection from humans God wouldn't have given them all those fangs and claws. Scalia demonstrated his point by wrestling a grizzly bear, winning the match by decision.

Today, I am wearing a new pair of pants, which is a big deal for me since my visceral hatred of shopping for clothes makes the probability of me having a new pair of pants at any given time extremely low. I bought these particular pants on sale at Macy*s, and got what I consider a very good bargain. They are, as usual, too long in the leg, since I'm a somewhat stubby man. I haven't taken them to the local haberdasher to have them shortened, and I probably never will.

The gimmick with these particular pants is a secret extra two inches of waist size, installed via two concealed bits of elastic. This means that the true waist size is actually a range, the lowest value being the number printed on the tag (x), and the highest value being x + 2. It was the marked-down price, and not this quantum mechanical waist size, that persuaded me to buy the pants, but I still think it's pretty neat.

If my dry cleaner were to lose these pants, however, I would not sue them for tens of millions of dollars.

Conversation with my wife, after I told her about a recent Slate article setting forth a hypothetical ending to the seventh Harry Potter book based on the series finale of "The Sopranos":

Me: I'll be glad when the whole phenomenon has passed.
Her: Which one? Harry Potter or the Sopranos?
Me: Both.
Her: I like Harry Potter.
Me: So do I, but it's kind of enough already.
Her: Whatever. I'm going to read Harry Potter to our kids.
Me: Good idea. It'll help them learn that they can be successful in life as long as they're really good at sports and have smart friends.
Her: [Glares menacingly.]
Me: And that they should worship the Devil.
Her: Well, that's the important thing.

My co-clerk is often extremely pedantic toward humorous ends. For example, every now and then she'll answer the precise question asked despite the fact that the question clearly implies a desire for additional information. Another example was one time when I was wondering if a particular word had a double-consonant or not. I asked her if the word was spelled with one "s" or two, and she said "three," because there was an additional "s" elsewhere in the word.

Just now, she was standing by my desk holding a stapler, and making clackity-clack noises with the stapler as if it were a pair of castanets. We had the following exchange:

Her: Clackity clackity clackity clackity...
Me: What are you doing?
Her: [Holds the stapler where I can see it better.] Clackity clackity clackity clackity...

Good times.

The WSJ Law Blog is really turning out to be a wonderful thing in the world of trivial legal news. Here is a detailed post about a lawsuit filed in Connecticut arising from the AutoAdmit scandal, including a copy of the complaint and the background of the controversy. Law Student Jackass All-Star Anthony Ciolli is named as a defendant for his role in administering the site. The users behind the offending posts are also named as defendants but identified only by their screen names, making for one of the silliest captions I've ever seen. The plaintiffs are two female Yale law students who claim that they've suffered a mountain of horrible injuries arising from vicious posts about them on the forums.

One final fun fact is that the plaintiffs' legal team, which is apparently working pro bono, includes IP superstar and filthy turncoat Mark Lemley, who knows a good bag of Doritos when he sees one.

This case raises a number of interesting legal issues, which are being bandied about on other blogs as I write this. Computer law isn't my forte, but there are clearly some statutory immunity issues regarding Ciolli himself. As for liability on the part of the users, there's the usual discomfort regarding the punishment of speech, particularly in the form of opinions, though of course once the speech treads into certain murky territories courts are a little more willing to impose liability.

Another interesting issue regarding the users is whether the plaintiffs will be able to identify them, both in terms of the practicalities of tracking them down by IP address (or whatever) and being able to legally force the disclosure of their names through discovery. Again, these are topics that I don't know a great deal about off the top of my head, but I know enough to know that they're going to be things over which the lawyers fight vigorously.

Turning to the cultural aspects of the scandal in terms of the legal profession as a whole, two things come to mind. First, one of the plaintiffs claims that the forum posts negatively impacted her employment opportunities, in particular preventing her from landing a desirable summer associate position. This claim strikes me as specious. I would hope that legal employers would know not to pay attention to what a bunch of anonymous Internet trolls have to say about an applicant, particularly if the credentials are otherwise in line. The black box of legal recruiting also makes this claim extremely hard to prove, and the employers in question will likely fight tooth and nail to avoid having to disclose the reasons behind their decisions regarding this particular plaintiff. This could also backfire on the plaintiff, of course, if it turns out that the employers had other reasons for not hiring her and those reasons came out during discovery.

Secondly, turning back to the concept of identifying the users, I think that would be a good thing, and perhaps the only productive thing to come out of the suit. Personally, I still get queasy about the idea of punishing offensive speech, even speech aimed at a particular private individual for no legitimate reason. And at bottom, many of the posts identified in the complaint are nothing more than crude, idiotic comments about the plaintiffs (the things that bleed over into threats and other stalkerish things, of course, are a somewhat different story). That being said, engaging in this type of speech is distasteful and bespeaks striking deficits of maturity and professionalism, and the legal community would benefit from having these idiots exposed. The proper punishment for most of these comments is public and professional obloquy rather than legal sanctions. This would also, ultimately, amount to a somewhat more poetic resolution to the controversy. The users were clearly trying to torpedo the academic and professional aspirations of the plaintiffs. The fact that they chose to do this through vicious anonymous Internet postings speaks volumes about their own qualifications, in terms of ethics, civility and common sense.

When I was in high school I used to come up with elaborate, cockamamie schemes to further my quest for world domination, including turning the Caspian Sea into a giant fusion reactor and genetically engineering chimps with opposable thumbs that could be trained to fire guns. Turns out I could have had a lucrative career as a military weapons strategist.

That's right, folks. The Gay Bomb. Dismissed, but not before it was proposed and considered by our nation's military leaders. Kudos to the Berkeley FOIA lawyas who uncovered this gem.

It also kind of reminds me of the part about the paramilitary organization in this needlessly long newsflash (see if you can spot the anagram!).

Finally, I'd like to point out that I'm blogging about this at the recommendation of a friend, the same friend who recommended that I blog about the link between soy and gay. I'm not sure what to make of the fact that this friend thinks I'd be interested in silly stories about gay that don't have anything to do with law. One theory springs to mind, which I won't disclose here, since this friend and I agreed that what happens in Yosemite stays in Yosemite. But I guess I'll never really know.

As I've mentioned previously, my email address results in me receiving a not insubstantial number of misdirected emails. The latest phantom missive is this photograph, sent without context from a Cingular Blackberry.

If you recognize any of these people, kindly wish them better luck next time.

Twins playing the theme song fro 90210 on a single guitar. In other words, awesome.

Dr. M and I just returned from a short trip to Puerto Vallarta (pictures here). Our luggage, unfortunately, decided to take an extra day of vacation and spend the night in Denver. We're hoping it'll return tomorrow. In the meantime I'll be formulating a sarcastic post about our trip, and adjusting to life without an endless supply of strawberry daquiris and the ever-present blaring of Motown cover bands.

The Second Circuit today struck down the FCC's new "fleeting expletives" policy, and in doing so had a lot to say about the FCC's indecency jurisdiction in general. As part of its crackdown in 2003-2004, the FCC started giving harsher treatment to four-letter words, beginning with Bono's unbleeped F-bomb during the January 2003 broadcast of the Golden Globes. In the Golden Globes decision the Commission acknowledged that it was changing the rules by holding that certain words were inherently verboten regardless of context (unlike the Supreme Court, the FCC at least owns up when it's throwing away its precedents). The Second Circuit case dealt with another broadcast to which the new rules were later applied, and here's the money shot:

We find that the FCC's new policy regarding "fleeting expletives" represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC's new policy regarding "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act. The petition for review is therefore granted, the order of the FCC is vacated, and the matter is remanded to the Commission for further proceedings consistent with this opinion. Because we vacate the FCC's order on this ground, we do not reach the other challenges to the FCC's indecency regime raised by petitioners, intervenors, and amici.

Although the court therefore didn't squarely reach the broader challenges, it did discuss the myriad constitutional issues raised by the FCC's indecency policies in some detail. The Progress & Freedom Foundation Blog has this slow-loading post with excerpts and analysis. I haven't read the opinions yet (though they may make for good airplane reading on my trip to Mexico later this week). I may have my own thoughts after I do.

In the meantime, FCC Chairman Kevin Martin and Commissioner Michael J. Copps are cursing mad about the decision, and assure us that the FCC will continue to protect the rights of parents to have the government decide what their children can watch on television.

Dr. M and I went to the San Francisco Opera's production of Don Giovanni this weekend. I enjoyed it a great deal, though it was my first opera so I can't really speak to whether it was a good production as productions go. Dr. M commented that the costumes and sets were very stark, consisting of a lot of blacks and grays, which appeared to be a departure from previous performances (based on photos in the program) which were more colorful and ornate. I think the starkness worked in terms of the overall theme of the opera.

Dr. M also thought that the descent of Don Giovanni's character from lovable scoundrel to damn-ed sinner was abrupt and unconvincing. I didn't have the same experience, because I've always hated lovable scoundrels. (In particular, I really hate heist movies. Stealing is wrong. It doesn't matter that the group of thieves is made up of quirky wise-crackers, or that the victim is an asshole. If it's not your gold you shouldn't steal it.) So to me, shockingly, Don Giovanni was evil from the very first scene, where he tries to rape Donna Anna, and continues to be evil as he tries to break up a perfectly good marriage just to see if he can, and incessantly screws around with the driven-mad-by-heartache Donna Elvira, and sets up his servant to be killed by an angry mob, and so forth.

But the big story of the evening was the SF Opera's introduction of "Opera Vision," a new development in opera viewing. The folks at the SF Opera were very excited about this. They sent us a letter about it after we bought our tickets, and at the performance they were handing out surveys asking viewers what they thought.

Opera Vision is, simply put, the opera version of the jumbotron. Up in the cheap seats they had installed two high-definition screens, on which the action on stage was simulcast. When we first sat down I noticed that the image of the stage on the screen was actually smaller than the stage was when I looked directly at it, which was amusing. But as the show got going it turned out that there were like four cameras set up and they switched constantly between different shots, focusing on various details according to the whims of the director. Judging by our own conversation and some overheard comments from other viewers during intermission, the general consensus seems to be that Opera Vision is a somewhat sensible idea, and is good for close-ups, but is ultimately a distracting and unnecessary addition to the opera experience. It sort of defeats the purpose of getting all fancied up, jackassing all the way to San Francisco, dodging the many urine puddles on the sidewalks of the Tenderloin/Civic Center area, and sitting in a seat that's just large enough for your bottom if you're simply going to watch a movie on a small screen once you get there.

WARNING: THE FOLLOWING PARAGRAPH CONTAINS AN OPERA SPOILER.

But the real point of Opera Vision, and likely the reason they chose this particular production to roll it out for the first time, came at the very end of the show. After the Commendatore (done up as -- I kid you not -- a zombie rather than a ghost) tells Don Giovanni that he 'bout to die, the rear wall of the set is raised to reveal a fiery backdrop, and a giant Angel of Death slowly rises from behind the stage. The Angel of Death was completely invisible to the balcony without benefit of Opera Vision. We couldn't see one black feather. So for this dramatic portion of the show, Opera Vision was a necessity, though the solution to this is probably designing your opera such that the significant visuals are accessible to the entire audience without having to resort to a video telecast.

On an unrelated note, on the way to the Opera House we passed by City Hall, where a prom had just gotten underway. Once we realized it was a prom (judging by the gaggle of well-dressed teenagers on the steps and the line of Hummer limousines down Polk Street), Dr. M and I had the following exchange:

Dr. M: They rent out City Hall for proms?!
Me: It probably doesn't take much convincing for Gavin Newsom to allow City Hall to be filled up with all that eighteen-year-old ass.
Dr. M: Good point.

Rock me, Amadeus.

Nearly a year after Cody's on Telegraph shut down, the Barnes & Noble on Shattuck permanently shut its doors on Thursday night. Dr. M and I made one last visit to pick over the clearance sale leavings, and came away with a handful of excessively marked-down books that probably still would have been cheaper on Amazon.com.

Apparently selling books in Berkeley is not a very profitable enterprise. Which is somewhat surprising, it being a college town and all. The fact that Barnes & Noble couldn't hang suggests that the demise of Cody's wasn't a matter of being driven out of business by a nefarious corporate megastore. As the Daily Clog post mentions, the company is giving a host of questionable, shareholder-friendly reasons for closing the store. But I agree with the Clog that the real culprit is the Intertron.

With Cody's and Barnes & Noble out of the way, Pegasus and Moe's remain as the two main booksellers in the campus area (and I forgetting anyone?). Both stores engage actively in the used book market, which is probably a big factor in their respective successes. I think the willingness to pay full price for books is diminishing -- particularly among cash-strapped college students -- in light of the fact that discounts are so easy to come by.

Either that, or Berkeley students just hate reading.