July 13,
2005: I’d be laughed out of the Court of Common
Pleas if I argued that my client hadn’t
identified a woman simply because, despite telling someone who
her husband was, I hadn’t actually uttered her name. And am I
really supposed to believe that Rove “knew” Valerie Plame had
encouraged the CIA to send her husband to
If
Democrats controlled Congress, they could perhaps make trouble for a public
official caught so flat-footedly and foolishly in the machinery of a legally
dubious political revenge play. But they don't. They have no leverage. And the
record of the Bush White House is one of digging in heels in the face of moral
culpability and ethical collapse.
Accountability
is anathema to these men. No one in the Bush administration has seen fit to
resign in the face of a torture scandal that has set back the war on Al-Qaeda
more than any bloody battle; Donald Rumsfeld is still in charge of the military
that his misbegotten strategies have begun to wreck. Alberto Gonzales, who in
his service as White House counsel helped approve the legal opinions that made
that torture scandal possible, was rewarded with a promotion to the Justice
Department, and may well soon sit on the U.S. Supreme Court, where he can
further protect American soldiers from the scourge of the Geneva Convention.
Dick Cheney's escalatingly comical pronouncements on how well the war in
President
Bush explained the logic here to us all when he declared that his
"accountability moment" came and went last November. Karl Rove's
tactical political genius ensured the moment would come out Bush's way. Now
there's no accountability at all. Unless there is hard evidence of perjury in
front of a grand jury, which I doubt Rove was dumb enough to commit, I don't
think [Rove] is going anywhere. The White House is his house now.
July 11,
2005: If you wonder whether our endeavors in
July 6, 2005: My prediction is
that Alberto Gonzalez will be Bush’s nominee to take
O’Connor’s seat on the Supreme Court. I base this conclusion on the right-wing
objections to Gonzalez, which seem orchestrated to defang Democratic objections
to Gonzalez and to portray Bush as a moderate
acting reasonably to replace O’Connor’s
moderation. But no one who calls the Geneva Convention’s
protections of prisoners of war “quaint” or who so blithely condemns people to death could be
deemed a moderate (much less a supporter of our troops). Nevertheless, I’ll bet too that the
Democrats will fold and the Republicans will not have to “go
nuclear” and do away with the filibuster to get Gonzalez confirmed.
June 30,
2005: Read Tony Judt:
“[T]he well-being of the
June 21,
2005: It’s
not just un-American and immoral: “For the purpose of prying
actionable information from suspects, torture is essentially useless.”
June 20,
2005: Senator Barack Obama’s
commencement address at Knox College.
What’s really behind the
fundamentalist Christian opposition to gay marriage? A conviction that homosexuality is a disease
in a literal sense, “one that afflicts not only individuals but also
society at large and that shares one of the prominent features of a disease: it
seeks to spread itself.” Not only
is this a fallacious confusion of a
metaphor with the reality it seeks to describe, it betrays such a
cramped and ignorant view of human sexuality that it’s bound to end in
disaster. And Andrew Sullivan notices
that “arguments about gays - that they are diseased,
and spread literal and figurative poison throughout society - . . . were once
echoed almost exactly by the most vicious anti-Semites against Jews.”
June 3, 2005: From Billmon:
What
the health of the Republic requires, in other words, may not be a new crop of leakers
and whistleblowers, or a fresh young generation of Woodwards and Bernsteins --
or even a more independent, aggressive media. What it may need is a new
population (or half of a population, anyway), one that hasn't been stupefied or
brainwashed into blind submission, that won't look upon sadistic corruption and
call it patriotism, and that will refuse to trade the Bill of Rights for a
plastic Jesus and a wholly false sense of security.
May 20, 2005: Bill Moyers:
I wore my flag
tonight. First time. Until now I haven't thought it
necessary to display a little metallic icon of patriotism for everyone to see.
It was enough to vote, pay my taxes, perform my civic duties, speak my mind,
and do my best to raise our kids to be good Americans.
Sometimes I would offer a small prayer of
gratitude that I had been born in a country whose institutions sustained me,
whose armed forces protected me, and whose ideals inspired me; I offered my heart's
affections in return. It no more occurred to me to flaunt the flag on my chest
than it did to pin my mother's picture on my lapel to prove her son's love.
Mother knew where I stood; so does my country. I even tuck a valentine in my
tax returns on April 15.
So what's this doing here? Well, I put it
on to take it back. The flag's been hijacked and turned into
a logo — the trademark of a monopoly on patriotism. On those
Sunday morning talk shows, official chests appear adorned with the flag as if
it is the good housekeeping seal of approval. During the State of the
But more galling than anything are all
those moralistic ideologues in
So I put this on as a modest riposte to men with flags in their lapels
who shoot missiles from the safety of Washington think tanks, or argue that
sacrifice is good as long as they don't have to make it, or approve of bribing
governments to join the coalition of the willing (after they first stash the
cash.) I put it on to remind myself that not every patriot thinks we should do
to the people of
While the U.S. media has been obsessing about Newsweek,
“the nuclear option,” and Michael Jackson’s masturbatory
habits, for the past two weeks, their UK counterparts have been up in arms over
the so-called “Downing Street memo,” a
leaked secret document that consists of the minutes of a meeting of British
Prime Minister Tony Blair’s senior national security team. The memo
shows, without a shadow of a doubt, that the American
and British governments had decided to invade
April 20, 2005: David Corn writes:
Marla
Ruzicka deserves the Presidential Medal of Freedom. Unlike Paul Wolfowitz or
George Tenet, she shouldn't get it for botching the job in
Ten years ago, a genocide
unfolded right in front of our eyes, but the media was more focused on the
legal problems of various celebrities than it was on the deaths of tens of
thousands of people in Africa.
And the same thing is happening today.
One has to wonder if, ten years from now, we'll be saying to one another
"I vaguely remember hearing about the genocide in
We at the Coalition for Darfur
ask you to join us in raising awareness of the genocide and to consider making
a small donation to any of the organizations providing life saving assistance
to the neglected people of
April
18, 2005: This is huge: a 20 percent increase in available
Roman and Ancient Greek literature.
April
11, 2005: “[N]o method of financing
retirement incomes is any more real than the Trust Fund. This is
not a statement of extreme philosophical uncertainty but simply recognition
that all forms of saving for the future involve a leap of faith. When
individuals or institutions give up something today in exchange for a promise
of something in return in the future, there is always the chance that the
promisor will fail to honor his promises. There are better and worse ways
to enforce promises, but none are superior to Treasury bonds. Not only are
the alternatives subject to their own vagaries that make them even less
reliable as promises of future income, but those who suspect that politicians
are always looking for a way to break their promises will discover that
non-government assets are also fatally vulnerable to the caprice of
politicians.”
A
Demonstration of the Futility of Using Microsoft Word’s Spelling and
Grammar Check.
April
6, 2005: You would think watching the news these past several weeks
that all that matters in the world is Terri Schiavo and the Pope. Did you know that during the three months of
genocide that began eleven years ago today, Rwanda received a total
of 278 minutes of news coverage from the likes of ABC, NBC, CBS and CNN,
meaning that each of these news organization spent less than 1 minute per day
reporting on a genocide that was taking lives at the rate of 1 every 11
seconds. Today,
Serious
reporting on [
President George W. Bush said on Tuesday that younger workers were counting on a fictional trust fund for their future retirement benefits, as he pressed his case for changes to Social Security in the face of continuing doubts among fellow Republicans.
"A lot of people in
"But that's not the way it
works," he said. "There is no trust fund -- just IOUs."
I
wish he’d stop lying. As the
articles I’ve been linking to again and again make clear, those
“IOU’s” are U.S. Treasury Bonds, and if the government starts
defaulting on those we’re in so much trouble Social Security is
irrelevant.
April
5, 2005: I knew the Lebron Powerade commercial
couldn’t be for real, but I liked to think it was.
April
4, 2005: An interesting take on the Grokster case
from a
letter by Bill Hana to Salon:
As I was reading Andrew Leonard's piece on MGM vs. Grokster, something occurred
to me. Isn't this the exact same thing that Congress absolved the gun industry
from recently? I seem to recall the logic behind that law was that gun makers
couldn't possibly be held responsible for what people did with their product.
So let me get this straight. A company providing a legitimate service that
could be used to violate copyright is liable for how its customers
abuse said service, but the company that provides a product whose sole purpose
is to launch a high-velocity hunk of metal isn't? My brain hurts.
I hate to be cynical, but it sure does seem like laws are being creating of, by
and for big campaign donors these days. In the future, my children won't have
the right to share a song with their friends. But if one of those friends
shoots them, at least no gun company exec will have to suffer. And that's
what's really important, right?
On March 3rd, legislators filed Senate bill S. 520 and House
version is H.R. 1070, the so-called "Constitution Restoration Act"
(CRA). In the worshipful words of the Conservative Caucus, this historic
legislation will "RESTORE OUR CONSTITUTION!", mainly by barring ANY
federal court or judge from ever again reviewing "any matter to the extent
that relief is sought against an entity of Federal, State, or local government,
or against an officer or agent of Federal, State, or local government (whether
or not acting in official or personal capacity), concerning that entity's,
officer's, or agent's acknowledgment of God as the sovereign source of law,
liberty, or government." (emphasis added) (full text here.) Restoration? The
Constitution states that “the People . . . do ordain and establish this Constitution
for the
March 31, 2005: If
we are truly concerned about a culture of life, we should stop the genocide in
From Inter Alia:
[L]ast week, the Administrative
Office of the U.S. Courts published its Considerations in Establishing a Court Policy
Regarding the Use of Wireless Communication Devices, which sets forth
a good description of the status quo, as well as things to keep in mind when
utilizing wireless devices in court.
Perspective is a wonderful thing.
Hypocrites of “tort
reform,” including George W. Bush and Rick Santorum.
March 30, 2005: A Florida committee composed
of judges, lawyers and clerks of court agreed Monday in Tampa on a basic
principle: General electronic access to court records should be available to
the public.
In contrast, a Minnesota Supreme Court
Advisory Committee last year concluded that remote electronic access should be
limited to “documents that the courts themselves
generate, such as the register of actions, calendars, judgment dockets, and
judgments, orders, appellate opinions, and notices prepared by the court . . .
[but] that there should be an exception to this recommendation to allow for the
type of high volume public access requests that come with high profile
cases.”
March 29, 2005: At least 108 people have died in US custody in Iraq
and Afghanistan.
27 of them are confirmed
homicides or are suspected to be by the Army.
Nevertheless, despite
recommendations by Army investigators, commanders have decided not to
prosecute 17 American soldiers implicated in the deaths of three prisoners
in
Guards and military
intelligence personnel allegedly tortured detainees at a U.S. Army
holding facility in northern
But Pentagon policies that allowed
harsh interrogation techniques and narrowed the definition of torture were not
to blame for dozens of cases of prisoner abuse in
When asked why he did not hold
anyone accountable for failing to establish clear interrogation
procedures in
According to John Yoo,
Bill Tierney “had just
returned from eight months working as an interrogator for US forces in Baghdad,
and had come to talk, on the record, about torture. ‘The Brits
came up with an expression - wog,’ Tierney said. ‘That
stands for Wily Oriental Gentleman. There's a lot of wiliness in that part of the
world.’ And when it comes to interrogating wily insurgents, Tierney
explained, he favors ‘smarts over smack.’. . . After explaining his
various psychological tactics to the audience, interrogator . . . Tierney (a
private contractor working with the Army) said, ‘I tried to be nuanced
and culturally aware. But the suspects didn't break.’ Suddenly Tierney's temper rose. ‘They
did not break!’ he shouted. ‘I'm here to win. I'm here so our
civilization beats theirs! Now what are you willing to do to win?’ he
asked, pointing to a woman in the front row. ‘You are the interrogators, you are the ones who have to get the
information from the Iraqis. What do you do? That word 'torture'. You
immediately think, 'That's not me.' But are we litigating this war or fighting
it?’”
March 27,
2005: Billmon’s Whisky Bar.
Tom Delay and his family decided
in '88 to let his comatose father die.
March 24,
2005: In
a domestic abuse case between an unmarried man and woman, the trial judge
in Cleveland yesterday reduced the charge from one of domestic violence against
a woman to simple assault, holding that to apply Ohio’s domestic violence
law to the relationship between
an unmarried offender and his victim would be to give legal status to a
relationship "approximating the significance or effect of
marriage.” Thus, the domestic
violence law runs afoul of Issue One, the constitutional amendment
approved last November by
In Florida two days ago,
“Republicans on the House Choice and Innovation Committee voted along party
lines Tuesday to pass a bill that aims to stamp out “leftist
totalitarianism” by “dictator professors” in the classrooms
of Florida’s universities. … According to a legislative
staff analysis of the bill, the law would give students who think their beliefs
are not being respected legal standing to sue professors and universities.
Students who believe their professor is singling them out for “public
ridicule” – for instance, when professors use the Socratic method to force students to explain their theories in class
– would also be given the right to sue.” Reminds me a little of this.
Forty years ago, in March
1965, the students and faculty of the University of Michigan (Ann Arbor) held
the first Teach-in against the Vietnam War — an all-night
study session involving thousands of students and dozens of faculty that began
about 6 p.m. and lasted till 6 a.m.
Who owns your e-mail when you
die?
When
Lance Corporal Justin Ellsworth was killed in
March
23, 2005: Tom Waits writes about his
twenty most cherished albums.
March
21, 2005: The best teacher I ever had, Doc Strater, died on Saturday. He taught me Latin and Ancient Greek in high
school. He didn’t need to be
teaching in high school; he was a Ph.D. in Classics and had been a Fullbright
Fellow. But he loved teaching high
school students, and that example was perhaps the most important lesson he
taught: do what you love. He also taught
me what now seems obvious: there are no stupid questions. If there was something I didn’t
understand, it wasn’t evidence of stupidity, it was evidence I needed to
learn something I didn’t know. And
he brought an enthusiasm to everything he did.
I would’ve never guessed in a million years when I entered his
classroom in ninth grade that I’d end up graduating from Brown eight
years later with a degree in Ancient Greek and Latin. I’ve been blessed with numerous gifted
teachers, but Doc Strater was the best of all, and he died way too young (of Parkinson’s).
Debunking
GOP myths about the filibuster.
March
18, 2005: From Kung Fu Monkey:
“[W]hen the Supreme Court struck down the bans against interracial
marriage in 1968 through Virginia vs. Loving, SEVENTY-TWO PERCENT of
Americans were against interracial marriage. As a matter of fact, approval of
interracial marriage in the
March 17, 2005: To
keep us humble, 13 things that don’t
make sense.
March 16, 2005: Peter Slevin writes in the
Washington Post:
Policymakers in 19 states are
weighing proposals that question the science of evolution..
. . At the state and local level, from
March 15, 2005: From the BBC:
People tell the story - a true
story - of 'the miracle of the swallows: how each spring, swallows wing their
way back to San Juan
Capistrano, California, there to nest in the ruins of the old
Spanish Mission
and raise their young, bringing joy to the residents' hearts and balm to their
weary souls. This is not that story.
Meanwhile In The
The good folks of Hinckley,
Ohio celebrate the arrival of spring when the buzzards return
from their winter stomping grounds in the southern
March 13, 2005: Here’s a directory of
contemporary poets who are lawyers.
March 9, 2005: I
attended a David Byrne lecture tonight in
Los Angeles on the topic of PowerPoint. He’s brilliant. He gave a good overview (with PowerPoint
slides) of the history and the critique of PowerPoint I’ve previously
mentioned (on February 13, 2004 and
August 22, 2003), but he’s an artist, and he’s after
more than that. PowerPoint is his new
medium:
I
have been working with PowerPoint, the ubiquitous presentation software, as an
art medium for a number of years. It started off as a joke (this software is a
symbol of corporate salesmanship, or lack thereof) but then the work took on a
life of its own as I realized I could create pieces that were moving, despite
the limitations of the "medium." I have shown these pieces in
galleries and museums and most recently have produced a book with a DVD (Envisioning Emotional Epistemological
Information) as means of presenting these curiosities.
Best
of all, he gives the lecture this Saturday, March 12, at
the Akron Summit County Public Library.
March 7, 2005: Steven Lubet on law school
exams:
The dirty secret (if it is a secret) is that
law schools rely on exams primarily because they are easy to grade. The intense
time pressure guarantees that the answers will be relatively short and, even more
important, that quality will differ significantly. Exams do a great job of
dividing test takers into measurable categories, even if those categories
measure nothing more than an ability to take tests in an artificial,
nonlawyerly setting.
March 5, 2005: Two wonderfully written pieces: Jim Holt makes me understand
Einstein’s theories of relativity better than I ever have, and
Paul Krugman takes on the economics and politics of
Social Security.
March
4, 2005: In Oregon, a new property-rights
law, which was approved overwhelmingly by voters last fall and is known as
Measure 37, is on the brink of wrecking Oregon's best-in-the-nation record of
reining in sprawl,
according to state officials and national planning experts. They say the new
law illustrates a nationwide paradox in public opinion: Although voters tend to
favor protection of farmland and open space, they vote down these protections
if they perceive them as restrictions on personal rights.
March
3, 2005: Joe Kimble’s “A
Modest Wish List for Legal Writing”
March
2, 2005: Michael Gil wrote last
September:
We remain a society that has no
qualms about building an oversupply of housing stock, which guarantees vacant
and abandoned housing. Therefore, we remain a society comfortable with devalued
neighborhoods where all the poor people live and are saddled with the most
expensive infrastructure repairs and the greatest social need.
We remain a region overbuilt
with a substantial inventory of empty retail space, and it seems that the only
reason we object to building more is if it would mean forcing someone to sell
their home to make way. And, of course, that means the only place anyone
objects is in the central cities, where the economic boost is needed most.
The backside of defending
property rights in these situations is defending your right to walk away from
those responsibilities. Because holding property rights sacrosanct in
February
28, 2005: Some news
organizations are giving extra thought to how they use words and phrases like
“reform,” “moral values,” and “war on
terror.” Brooke Gladstone, co-host of
NPR's On the Media explores how some media outlets decide what to say,
and how to say it (audio file).
Another huge surprise:
“Medical malpractice lawyers are cast as the marquee villains in the
[Bush] administration's war against what it regards as a litigious culture run
amok.”
My father was an American G.I.
captured by the Germans during the
February 24, 2005: Annalee Newitz analyzes End User License Agreements:
We've all seen them – windows that pop up before you install a
new piece of software, full of legalese. To complete the install, you have to
scroll through 60 screens of dense text and then click an "I Agree"
button. Sometimes you don't even have to scroll through to click the button.
Other times, there is no button because merely opening your new gadget means
that you've "agreed" to the chunk of legalese.
They're called End User
License Agreements, or EULAs. Sometimes referred to as "shrinkwrap"
or "click-through" agreements, they are efforts to bind consumers
legally to a number of strict terms – and yet you never sign your name.
Frequently, you aren't even able to see a EULA until after you've purchased the
item it covers.
Although there has been
some controversy over whether these agreements are enforceable, several courts
have upheld their legitimacy.1
These days, EULAs are ubiquitous in software and consumer electronics -- millions
of people are clicking buttons that purport to bind them to agreements that
they never read and that often run contrary to federal and state laws. These
dubious "contracts" are, in theory, one-on-one agreements between
manufacturers and each of their customers. Yet because almost every computer
user in the world has been subjected to the same take-it-or-leave-it terms at
one time or another, EULAs are more like legal mandates than consumer choices.
They are, in effect, changing laws without going through any kind of
legislative process. And the results are dangerous for consumers and innovators
alike.
It's time that consumers
understood what happens when they click "I Agree." They may be
inviting vendors to snoop on their computers, or allowing companies to prevent
them from publicly criticizing the product they've bought. They also click away
their right to customize or even repair their devices. This is a guide for the "user" in EULA, the person
who stands to lose the most by allowing companies to assert that these
click-through agreements count as binding contracts.
My old college friend Matt Rose,
an artist now living in
February 23, 2005: Brooke Allen on Our Godless
Constitution.
February 22, 2005: It
seems Daniel Engber, in What about Bob?, is
asking the same question I asked on February 16: Judith Miller and Matthew
Cooper seem to be headed for jail. Why
isn’t Bob Novak?
From the NY Times last Saturday:
Of all the claims of an
electoral mandate made by President Bush's supporters, none were as bizarre as
the one offered by John Yoo, a former Justice Department lawyer who helped
draft the cynical justifications for the illegal detention and torture of
"unlawful combatants." "The debate is over," Mr. Yoo told
The New Yorker, adding: "The issue is dying out. The public has had its
referendum."
It's hard to know what is
most outrageous about those comments - that Mr. Yoo actually believes Americans
voted for torturing prisoners or that an official at the heart of this
appalling mess feels secure enough to say that. Certainly the worst possibility
is that the public has, indeed, lost interest.
The White House has done
everything it can to bury the issue. Nearly a year after the Abu Ghraib scandal
broke, the administration still drags its feet on
public disclosure, stonewalls Congressional requests for documents and
suppresses the results of internal investigations.
But the issue is as urgent
as ever. Hundreds of men remain imprisoned at
Jonathan
Chait on the real differences between conservatives and liberals.
February 18, 2005: Luc Sante on Bob Dylan.
February 17, 2005: To paraphrase Chrissie Hynde,
oh, god, no, Ohio:
Conservatives in the Ohio State
Senate are considering a bill
that would prohibit public and private college professors from introducing
“controversial matter” into the classroom and shift oversight of
college course content to state governments and courts. The language of the
bill comes from right-wing activist David Horowitz’s “Academic Bill of Rights,”
which recommends states adopt rules to “restrict what university
professors could say in their classrooms” and halt liberal
“pollution” on campus.
Horowitz, who is the driving
force behind the movement for “academic freedom” in Ohio and other
states, has a distinguished history of intellectual defamation, historical
inaccuracy and political bullying. He has freely compared American liberals to Islamic
terrorists, slandered the Democratic Party
and John Kerry for criticizing the war in
Bill Clinton never supported
private social security accounts and neither, for that matter, did FDR (though plenty
of people are saying both did).
Unsurprisingly, the House today passed the
so-called “Class Action Fairness Act.”
February 16, 2005: Something is seriously wrong here.
Robert Novak outed Valerie Plame as a CIA agent,
and yet Matthew Cooper and Judith Miller have to go to jail because they
won’t disclose their sources for the information that Novak
published? In his concurring opinion to the D.C. Circuit opinion
affirming the trial court’s order holding Cooper and Miller in contempt,
David Sentelle draws near the point that Novak’s publication of the Plame
story was far more blameworthy than Cooper’s refusal to write about Plame
until after Novak had – by then Cooper’s article was not a
disclosure of information illegally leaked but instead was about the firestorm
of attention that had broken out over Novak’s disclosure of Plame’s
identity:
In concluding that no privilege
applies in this case, I have assigned no importance to the fact that neither
Cooper nor Miller, perhaps recognizing the irresponsible (and quite possibly
illegal) nature of the leaks at issue, revealed Plame’s employment,
though Cooper wrote about it after Novak’s column appeared. Contrary to
the reporters’ view, this apparent self-restraint spares Miller and
Cooper no obligation to testify. Narrowly drawn limitations on the
public’s right to evidence, testimonial privileges apply “only
where necessary to achieve [their] purpose,” Fisher v. United States,
425
Sentelle and the rest of the
D.C. Circuit never address, however, the elephant in the room: if Cooper and
Miller have to go to jail for refusing to disclose to a grand jury the identity
of the person who told them Plame was a CIA agent, then is anything going to
happen to Novak or even the people who actually broke the law here – the
“White House officials” who leaked Plame’s identity?
February 15, 2005: Elizabeth Anderson at
Left2Right on the purposes of Social Security.
And Ms. Anderson on
Bush’s “tax cuts”:
Let's face the facts. The nominal "price" of
government (not the same as its total cost) is equal to the amount of
government spending, not the amount of tax revenues. If the spending
isn't paid for today, it will have to be paid for tomorrow, with interest.
Bush has been steadily increasing government spending, as you
can see here. Falling
tax revenues today mean rising tax bills tomorrow. To be honest, we
should call Bush's tax policies, given the absence of commensurate spending
cuts, tax postponements. They are not tax
"cuts."
February14, 2005: Douglas Kysar writes:
“If the political storm over tort reform ever subsides long enough to let
this point sink in [that litigation can motivate precautions even in the
absence of statute or regulation], tort bashers of all stripes might come to
realize that ‘regulation through litigation’ actually helps to keep
government smaller.”
The White House has launched a $35 million
public relations effort to support President Bush’s Social Security
privatization scheme. This fact sheet
sets forth a point-by-point rebuttal of that effort’s premises.
Bruce Ackerman on the Supreme
Court.
From Lester
S. King, Why Not Say It Clearly 19
(1978), via Minor Wisdom:
The mature and reasonably well educated adult who cannot
understand expository writing should not conclude that he is dull-witted or
that the subject is too abstruse for him. He should at least entertain the
suspicion that the fault lies with the author and that the writing is bad.
February 11, 2005: I’m disappointed in Diane
Feinstein’s and Barak Obama’s support of the Class Action Fairness Act of
2005, which the Senate approved yesterday (with House approval and
presidential signature anticipated) and which provides that large multistate
class action lawsuits like the ones that have been brought against tobacco
companies could no longer be heard in small state courts. My disappointment is founded in my conviction that the
“problem” of tort litigation is a product of hype. Moreover, the criticism of tort litigation
sorely neglects its effectiveness as regulation. I cannot imagine, for example, that state
consumer protection legislation would be anything more than wishful thinking if
its enforcement were left to state regulators.
Instead, businesses comply with such regulation in the myriad of
day-to-day transactions because of the threat of tort liability. Nevertheless, maybe the legislation is mild
enough, if it isn’t the first of a stream of similar laws, to justify Feinstein’s statement
that "[th]is bill, like most, is not
perfect. But I believe that it represents the best that can be done to solve
what is a real problem in our legal system." Under the Act,
plaintiffs in class actions seeking in excess of $5 million would have to bring
their cases in a federal court if less than one-third of the plaintiffs are
from the same state as the primary defendant.
While common wisdom has it that state court juries are vastly more
generous to plaintiffs than are federal court juries, presumably federal courts
will give a fair hearing to class action plaintiffs. But I’m afraid the whole affair is just
more of the politics of appearances.
Jane Mayer
on The secret history of
America’s “extraordinary rendition” program.
February
10, 2005: The Truth about the Billable
Hour.
February 9, 2005: From Corp Law Blog, fun
with clause identifiers. Using them in your legal
writing will make you less susceptible to:
(a) confusion,
(b) unforeseen interpretations, and
(c) ridicule in
(i)
(i) law school classrooms, and
(ii)
(ii) blogs.
February
8, 2005: Statement of Senator Richard
J. Durbin on the nomination of Alberto R. Gonzales to serve as
Attorney General of the
February 7,
2005: The Wisconsin IVth District
Court of Appeals couldn’t have said it better in explaining what a court
wants in the briefs lawyers submit to them:
Before addressing
each of Western Wisconsin's claims against Swanson and the Welters that the
trial court dismissed, we note that our review was made more difficult by the
appellant's failure to structure its arguments in terms of the specific causes
of action it pled and the items of proof going to each of the elements it
needed to establish or place in dispute in order to survive summary judgment.
For example, the appellant begins its brief with a lengthy statement of the
case and underlying "facts," followed by a "summary of
argument" and a discussion of our well-settled standard of review.
Finally, on page thirty-five of its brief, the appellant begins discussing the
merits of its appeal, but the discussion first lumps several causes of action
together in an effort to persuade us that the record contains sufficient
evidence for a jury to find that the three individual defendants
"personally participated in tortious conduct."
ĥ11. There is no
cause of action, however, for generalized "tortious conduct." What we
must decide is whether each of
ĥ12. We do not
include this criticism of the appellant's brief to embarrass its counsel but to
point out the all too common failure on the part of appellants to properly
structure their arguments when appealing summary judgment rulings. What both we
and the circuit court must decide on summary judgment is whether there needs to
be a trial to resolve factual disputes that are material to the specific causes
of action properly pled by a plaintiff or to any legally cognizable defenses
raised by a defendant. And, because our review is de novo, whether the
circuit court properly considered certain arguments or submissions is
irrelevant to our independent analysis. Although the presentation of a certain
amount of introductory context may be necessary to our proper understanding of
the arguments which follow, appellants should succinctly explain to us why we
should or should not permit specific claims to survive summary judgment based
on what the law requires claimants or defendants to prove and what the record
demonstrates regarding the presence or absence of disputed facts material to
those requirements.
I’m
shocked, shocked: caps on personal injury
recoveries have no meaningful effect on malpractice
premiums:
Weiss Ratings Inc., an independent organization that evaluates the
financial strength of numerous financial institutions, especially insurers,
concluded that "capping malpractice damages does not lower insurance
premiums for doctors." The Medical Liability Monitor, which
publishes the latest information on medical liability insurance rates, in its
annual rate survey found that "states with caps on damages have average
insurance premiums that are 9.8 percent higher than insurance premiums in
states without caps."
Do caps have much of an impact on health-care costs generally?
No. The independent Congressional Budget Office reported that
"medical malpractice costs amounted to less than 2 percent of overall
health-care spending and the impact on insurance premiums would be
comparatively small." Caps on medical malpractice damages won't make a
dent in the national health-care spending crisis.
What about those "tort litigation costs"?
The News editorial repeats insurance industry estimates of the
Be very careful about believing
what you see. I wonder
whether Team America World Police will have to
rescue this hostage.
One of my quibbles
is that
Moreover, as Benjamin Reeve has pointed out, without
the concomitant development of meaningful restraints on money and power,
meaningful individual rights, and a legal system in which freedom of speech is
promoted and transparency maintained, the imposition of western-style means of
capitalizing wealth would result within a brief time in the concentration of
that wealth in few and primarily foreign hands:
February
1, 2005: JD Bliss, a blog claiming to be for those seeking
career satisfaction, life/work balance, and personal growth.
January
27, 2005: Richard Posner on tort reform:
The costs of malpractice premiums are only about 1
percent of total
The relation between malpractice premiums and malpractice
judgments is also uncertain. No doubt capping judgments, which is the principal
reform that is advocated, has some tendency to reduce premiums, but perhaps not
much, because there is evidence that premiums are strongly influenced by the
performance of the insurance companies’ investment portfolios.
A better reform would be to permit, encourage, or even
require insurance companies to base malpractice premiums on the experience of
the insured physician, much as automobile liability insurance is based on the
driver’s experience of accidents. That would make malpractice liability a
better engine for deterring malpractice—which in turn would reduce
malpractice premiums by reducing the amount of malpractice. Capping judgments,
in contrast, would reduce the incentive of insurance companies and their
regulators to move to a system of experience-rated malpractice insurance.
The 2d Circuit Court of
Appeals 2 days ago reversed (pdf) a lower court decision that had
dismissed the complaint by two teenagers alleging that McDonald’s
violated § 349 of the New York General
Business Law, which makes unlawful “[d]eceptive acts or
practices in the conduct of any business, trade or commerce or in the
furnishing of any service in this state.”
Specifically, the teenagers allege (1) McDonald’s marketing
efforts between 1987 and 2002 created a false impression that its food products
were nutritionally beneficial and part of a healthy lifestyle if consumed
daily, (2) McDonald’s failed adequately to disclose that its use of
certain additives and the manner it processed its foods made some of those
foods substantially less healthy than represented, and (3) McDonald’s
deceptively represented it would provide nutritional information to its New York
customers when in reality such information was not readily available at a
significant number of McDonald’s outlets in New York visited by the
plaintiffs and others. The teenagers
contend they ate at McDonald’s 3 to 5 times a week throughout the years
in question, were “led to believe that [McDonald’s] foods were
healthy and wholesome, not as detrimental to their health as medical and
scientific studies have shown, . . . [and] of a beneficial nutritional
value,” and that they “would not have purchased and/or consumed the
Defendant’s aforementioned products, in their entire[t]y, or on such
frequency but for the aforementioned alleged representations and
campaigns.” As a result, they further contend, they have developed
“obesity, diabetes, coronary heart disease, high blood pressure, elevated
cholesterol intake, related cancers, and/or other detrimental and adverse
health effects . . . .”
The decision will probably provoke a
flurry of calls to reign in trial lawyers, but it shouldn’t. The lower court had held, in essence, that
the complaint was defective in alleging facts that would establish a direct
connection between eating McDonald’s food and the teenagers’
maladies. The lower court had asked:
“What else did the plaintiffs eat? How much did they exercise? Is there a
family history of the diseases which are alleged to have been caused by
McDonald’s products? Without this additional information,
McDonald’s does not have sufficient information to determine if its foods
are the cause of plaintiffs' obesity, or if instead McDonald’s foods are
only a contributing factor.” As the 2d Circuit, pointed out (at pages 5-6
of its decision), however, the process of a lawsuit provides plenty of
opportunity for McDonald’s to determine whether its foods caused the
obesity and other problems. The
complaint is only the beginning of the lawsuit.
If, after discovery, the plaintiffs don’t come up with evidence
that could convince a jury that McDonald’s engaged in the alleged
deceptive practices and that McDonald’s food caused their problems, the
trial court will dismiss the case on summary judgment. I don’t know whether the lawyers will
come up with evidence tying their teenage clients’ illnesses directly
enough to their consumption of McDonald’s food, and my guess is
it’s unlikely they will, but the possibility doesn’t
seem entirely farfetched.
January 7,
2005: Robert B. Reich writes:
[W]e've got an FDA that's not
protecting consumers from harm, and pending legislation that makes it almost
impossible for people who are hurt by drugs approved by the FDA to sue for
damages. The question must be asked: How is the public going to be protected if
the FDA remains weak and if private lawsuits are cut off?
You might ask the same
question all over government these days. Pick an agency - not just the FDA, but
the Securities and Exchange Commission, the Consumer Product Safety Commission,
the Federal Trade Commission, and so on. They're supposed to protect the
public. But they're all understaffed, their budgets have been whacked, and many
of them are in the pockets of the very companies and industries they're
supposed to regulate.
At exactly the same time,
Republicans are clamoring for what they call "tort reform." Tort
reform is a nice way of saying that people who are harmed by companies
shouldn't be able to sue them and collect damages.
They can't have it both
ways. Either regulatory agencies have to be made tougher and more independent,
and given the resources they need to protect the public, OR we've got to rely
on courts and private lawsuits to make sure companies have every financial
incentive to protect the public. Absent both - tough regulators and the threat
of private lawsuits - the public is at serious risk. If you're worried about
Celebrex and Vioxx, you ain't seen nothin' yet.
January
6, 2005: As I wrote last November 30,
the 2002 "Torture Memo"
prepared by Jay Bybee for Alberto Gonzalez was intellectually specious in,
among other things, limiting the definition of “torture” under 18 U.S.C. sections 2340-2340A
to treatment that causes pain "equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of
bodily function, or even death.”
We
have also modified in some important respects our analysis of the legal standards
applicable under 18 U.S.C. §§ 2340-2340A. For example, we disagree with
statements in the August 2002 Memorandum limiting “severe” pain
under the statute to “excruciating and agonizing” pain, id. at
19, or to pain “equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily function, or even
death,” id. at 1. . . .
The August 2002 Memorandum also
looked to the use of "severe pain" in certain other statutes, and
concluded that to satisfy the definition in section 2340, pain "must be
equivalent in intensity to the pain accompanying serious physical injury, such
as organ failure, impairment of bodily function, or even death."
December 27, 2004: Sister Helen Prejean writes: “As
governor, Bush certainly did not stand apart in his routine refusal to deny
clemency to death row petitioners, but what does set him apart is the sheer
number of executions over which he has presided. Callous indifference to human
suffering may also set Bush apart. He may be the only government official to
mock a condemned person's plea for mercy, then lie about it afterward, claiming
humane feelings he never felt. On the contrary, it seems that Bush is
comfortable with using violent solutions to solve troublesome social and
political realities.”
Sara Rimer unmasks
the Anonymous Lawyer. He’s Jeremy Blachman,
the Harvard 3L who’s following his heart, not his
wallet.
According to research
published by a group of scholars beginning in 1998, countries that
come from a French civil law tradition struggle to create effective financial
markets, while countries with a British common law tradition succeed far more
frequently.
December
9, 2004: Paul Krugman writes
that the effort to “reform” or “privatize” Social
Security, which as I’ve written is an effort to destroy the entire
purpose of Social Security, is founded on a fraudulent assertion that there is
a crisis in Social Security funding:
[E]xtending the life of the trust fund into the 22nd century, with no
change in benefits, would require additional revenues equal to only 0.54
percent of G.D.P. That's less than 3 percent of federal spending - less than
we're currently spending in
Given these numbers, it's not at all hard to come up with fiscal
packages that would secure the retirement program, with no major changes, for
generations to come.
It's true that the federal government as a whole faces a very large
financial shortfall. That shortfall, however, has much more to do with tax cuts
- cuts that Mr. Bush nonetheless insists on making permanent - than it does
with Social Security.
But since the politics of privatization depend on convincing the
public that there is a Social Security crisis, the privatizers have done their
best to invent one.
December
7, 2004: The use of e-mail
has exposed corporate America’s
inability to write well.
December
6, 2004: How to write a Good Appellate
Brief, by Andrew L. Frey and Roy t. Englert, Jr.
From
the newly renamed Minor Wisdom (f/k/a
Rain Man 2) comes this link to Commonweal's editorial
against confirmation of Alberto Gonzales as attorney general:
No
single incident in the “war” on terror has done more to damage
Has
a school banned the Declaration of Independence from the classroom? Of course
not.
December
3, 2004: Jeremy Blachman at Harvard
follows his heart.
A
legal aid attorney in
December
1, 2004: CBS and the NBC networks are refusing to air an ad by the
United Church of Christ that states “like Jesus
-- the United Church of Christ seeks to welcome all people, regardless of
ability, age, race, economic circumstance or sexual orientation.” The UCC reports that “[a]ccording to a
written explanation from CBS, the United Church of Christ is being denied
network access because its ad implies acceptance of gay and lesbian couples --
among other minority constituencies -- and is, therefore, too
‘controversial.’"
November 30, 2004: Ernie the Attorney provides me with this link, a remarkably sane, non-lawyer
writing about how to avoid litigation.
It should come as no great surprise that the Red Cross has reported that the
U.S. used psychological and physical coercion "tantamount to torture"
on Guantanamo Bay detainees and that doctors and other medical workers helped
plan interrogations in “flagrant violation of medical ethics.” As Philip Carter wrote not too
long ago in connection with the torture exposed at Abu Ghraib, the
treatment of prisoners taken by the
Re-reading
the “torture memos” prepared by the administration only confirms
Carter’s views. The memos are
intellectually specious. The 2002 Department of Justice
memorandum that advised torture of prisoners could be justified (the
“Torture Memo”) limited the definition of “torture” to
treatment that causes pain "equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of
bodily function, or even death.”
The term “emergency medical condition” means a medical
condition manifesting itself by acute symptoms of sufficient severity
(including severe pain) such that a prudent layperson, who possesses an average
knowledge of health and medicine, could reasonably expect the absence of
immediate medical attention to result in—
(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction
of any bodily organ or part.
Bybee,
incidentally, has been nominated
to the U.S. Court of Appeals for the Ninth Circuit.
Scott Rosenberg writes
that the Bush Administration proposes borrowing the trillions of dollars needed
to make up the shortfall that would be created by its Social Security
privatization scheme and asks why the risk posed by that level of national debt
is worth it:
Meanwhile, what are we taking
this huge risk for? For the sake of letting individual investors take a modest
portion of their retirement money and put it into mutual funds? Of course,
we've recently had a national refresher course in how the mutual fund industry
works; even without crooked kickbacks and such, the service fees eat up a
significant chunk of the ostensible advantage you get from investing long-term
in stocks over more conservative choices. And those financial advisers who love
to tout the long-term advantage of stock investments are rarely willing to come
clean on the risk to retirees: Growing older is not a choice, and if you're
unlucky enough to need to retire during a market downswing, you will not find
much consolation in knowing that your portfolio would have averaged out a
winner if you'd only had another decade or two.
In the long term, stocks may be
better; but as a famous economist once said, in the long term, we're all dead,
too. The long term is always iffy. That's why the best retirement safety nets
are built out of safer materials than stock-market investments -- and why
Social Security should be kept out of the hands of the brokers.
November
29, 2004: From JALWD, courtesy of
the Seventh Circuit’s web site, Ruth Anne Robbins writes in her article
“Painting with print:
Incorporation concepts of typographic and layout design into the text of legal
writing documents”:
If
we accept the acknowledged science about legibility and the related concept of information
retention, then we must also accept as true the conclusion that a lawyer who is
able to effectively manipulate textual design will create a more credible and a
more persuasive document. A visually well-designed document will enhance that
document’s readability, and the author/designer will reap the benefits of
a more easily comprehensible document. Thus, attorneys should keep the visual
design arrow handy in their quiver of persuasive techniques.
Among
a myriad of useful points, Professor Robbins suggests not justifying the right
margin, doing away with headings in all capital letters, and using
“roadmap paragraphs” and headings to help the reader better
understand the relationships among subtopics.
I
saw Lebron James play in person for the first time this season on Saturday night,
and I came away thinking the wild praise he’s
received thus far this year is deserved. It might seem like a strange comparison, but
the athlete he most reminded me of was Wayne Gretzky. I saw Gretzky play a few times with the Edmonton
Oilers against the New York Rangers back in the ‘80’s, and what the
two seem to have in common is the ability to read the action going on all
around them and at precisely the right moment react with lightning reflexes to
make a move no one else could have anticipated.
November
23, 2004: Michael
Massing’s “Iraq, the Press, and the
Election.”
November
22, 2004: It’s 41
years since one of my very first memories,
but 50 to the day since the decision in Lucy v. Zehmer, the law school favorite in
which the court enforced a contract written in a bar on the back of a
restaurant check despite the defendant’s claim that he "was
high as a Georgia pine" and that the transaction was “just a bunch
of two doggoned drunks bluffing to see who could talk the biggest and say the
most."
Maybe
U2 has figured out file-sharing helps rather than
hurts cd sales.
November
16, 2004: In acting as a
designated challenger for the Democratic Party during the recent election, was I, like Ian Solomon of
Yale, an unwitting party to a fraud?
California has adopted new
Plain English jury instructions. The complete text of the new instructions and related
materials are here. Here are
examples of old and new instructions on burden of proof:
Old: “Preponderance of the evidence means evidence that
has more convincing force than that opposed to it. If the evidence is so evenly balanced that
you are unable to say that the evidence on either side of an issue
preponderates, your finding on that issue must be against the party who had the
burden of proving it.”
New: “When I tell you that a party must prove something, I mean that the party must persuade you, by the evidence presented in court, that what he or she is trying to prove is more likely to be true than not true. This is sometimes referred to as the ‘burden of proof.’”
The
new instruction on
the duty of care owed to children (§412) illustrates well the
“plainness” the drafters were trying to achieve:
“An adult must anticipate the ordinary
behavior of children. An adult must be more careful when dealing with children
than with other adults.”
November
15, 2004: Stuart Taylor Jr. writes: “The problem
with [Alberto] Gonzales is that he has been deeply involved in developing some
of the most sweeping claims of near-dictatorial presidential power in our
nation's history. These claims put President Bush literally above the law,
allowing him to imprison and even (at least in theory) torture anyone in the
world, at any time, for any reason that Bush associates with national
security.” He thus seems a worthy
successor to John Ashcroft, who in his first remarks since
announcing his resignation, denounced what he called "a profoundly
disturbing trend" among some judges to interfere in the president's
constitutional authority to make decisions during war. "The danger I see
here is that intrusive judicial oversight and second-guessing of presidential
determinations in these critical areas can put at risk the very security of our
nation in a time of war," Ashcroft said in a speech to - who else? - the
Federalist Society.
These views are profoundly radical –
they would have it that when it comes to the “war” on terrorism,
the President is simply above the law and not subject to judicial review. Moreover, one of the decisions Ashcroft
is upset about is last week’s decision in
Hamdan v. Rumsfeld holding that the hearings have to be held to
determine whether the prisoners at Guantanamo should be considered prisoners of
war and therefore subject to the Geneva Convention. In short, a judge had held
that at "a time of war" our captured enemies might be "prisoners
of war." So it’s a
“war” when we’re talking about presidential power and about
the “war on terror,” but the administration would prefer it not be
considered a “war” when it comes to applying the Geneva
Convention. My father was a POW in
Malcolm Gladwell has an
interesting piece in the New Yorker on art and plagiarism:
Intellectual-property doctrine
isn’t a straightforward application of the ethical principle “Thou
shalt not steal.” At its core is the notion that there are certain
situations where you can steal. The protections of
copyright, for instance, are time-limited; once something passes into the
public domain, anyone can copy it without restriction. Or suppose that you
invented a cure for breast cancer in your basement lab. Any patent you received
would protect your intellectual property for twenty years, but after that
anyone could take your invention. You get an initial monopoly on your creation
because we want to provide economic incentives for people to invent things like
cancer drugs. But everyone gets to steal your breast-cancer cure—after a
decent interval—because it is also in society’s interest to let as
many people as possible copy your invention; only then can others learn from
it, and build on it, and come up with better and cheaper alternatives. This
balance between the protecting and the limiting of intellectual property is, in
fact, enshrined in the Constitution: “Congress shall have the power to
promote the Progress of Science and useful Arts, by securing for
limited”—note that specification, limited—“Times
to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries.” So is it true that
words belong to the person who wrote them, just as other kinds of property
belong to their owners? Actually, no.
November 12, 2004: As I mentioned on June 10,
when he was counsel to then Governer Bush, Alberto Gonzalez, the nominee to be
chief law enforcement officer of the land, prepared 57 confidential memos on
the merits of granting death-row inmates clemency. 56 of the inmates were executed. As Philip Carter writes in
Slate, the memos “would have barely earned a passing grade in law
school, let alone satisfy the requirements of a job in which life and death
were at stake. Perhaps more important, these early memos from
One thing is certain about
Gonzales, who is widely rumored to be in line
for appointment by Bush to the Supreme Court: he doesn’t have
much of a paper trail. Thus far, I have
only been able to locate 21 opinions he wrote as a justice of the Texas Supreme
Court. Only one of those is politically
notable, and not in a way liberals might fear.
In In Re Jane Doe, 19 S.W.3d 346 (
November 12, 2004: As I mentioned on June 10,
when he was counsel to then Governer Bush, Alberto Gonzalez, the nominee to be
chief law enforcement officer of the land, prepared 57 confidential memos on
the merits of granting death-row inmates clemency. 56 of the inmates were executed. As Philip Carter writes in
Slate, the memos “would have barely earned a passing grade in
law school, let alone satisfy the requirements of a job in which life and death
were at stake. Perhaps more important, these early memos from
One thing is certain about Gonzales,
who is widely rumored to be in line for appointment by Bush
to the Supreme Court: he doesn’t have much of a paper
trail. Thus far, I have only been able
to locate 21 opinions he wrote as a justice of the Texas Supreme Court. Only one of those is politically notable, and
not in a way liberals might fear. In In
Re Jane Doe, 19 S.W.3d 346 (
November 11, 2004: Lebron!
November 10, 2004: In
response to my reference yesterday to Jonathan Cohn’s article
on Social Security privatization, a friend wrote: “But what
does one say to people who are ideologically opposed on a fundamental level to
anything that has to do with the program, or the New
Deal in general, in the first place? To
people who in response to "The idea of Social Security was to insulate the
elderly from the whims of the stock market and business cycle by guaranteeing a
safe income," would just say that it is not the government's job to
insulate people from the market? That it
is their family's responsibility to look after them, not the government? Their
response to "Social Security was also deliberately redistributive"
would be equally hostile, likely saying that redistribution is fundamentally
unjust, communist even. I have no clue
how to argue this issue when faced with that kind of ideological
reponse.”
All I could muster in return was the
following: My argument to them is simply the question: what do you do then
about the destitute elderly? What do you
do when there's a stock market crash that wipes out an elderly person's savings
(as happened to so many in 1929)? The
New Deal wasn't a putsch by socialists - it was a reasoned response to economic
disaster, the kind of economic disaster that's been averted since in part
because of the safeguards the New Deal put into place.
There’s
nothing unusual about my wish that
Do you really want to understand those maps
of Red and Blue America?
Back to matters of language: the
November
9, 2004: “Ohio election officials said
Monday that they would begin this week the final count of 155,428 provisional
ballots and an unknown number of overseas absentee ballots that were
cast in the presidential election. According to the preliminary tally, which
included all domestic absentee ballots, Sen. John F. Kerry lost
Jonathan Cohn on Social
Security “privatization”:
When Franklin Roosevelt enacted
the program as part of the New Deal, large portions of the nation's elderly
were living in poverty because many had not saved enough during their working
lives, and even those who had saved frequently lost money on bad stock market
investments. The idea of Social Security was to insulate the elderly from the whims
of the stock market and business cycle by guaranteeing a safe income. Social
Security was also deliberately redistributive, paying out relatively higher
benefits to those with lower incomes as another hedge against the fact that
chance (whether in the form of bad business luck or poor inherited skills) left
some people destitute as they entered old age.
So the first question to ask of
any proposed reform is whether it would similarly remain true to the program's
founding ideals. When it comes to private account schemes, the answer is
"no." At a time when many Americans already fret over how recent Wall
Street dips affected their 401(k) plans, privatization would tether their
financial security even more closely to the economy and stock market. In
general, privatization schemes envision people converting their accounts into
annuities (which pay out a fixed sum of money every year) once they reach
retirement age. But that means people who retire at the bottom of a bear market
will be locked into benefits much lower than those who retire at the top of a
bull market.
November
8, 2004: I was wrong about
Maybe this time the voters chose what they actually want:
Nationalism, pre-emptive war, order not justice, "safety" through
torture, backlash against women and gays, a gulf between haves and have-nots,
government largesse for their churches and a my-way-or-the-highway President.
So, yes, okay, fine. I'm a terrible person -- barely a person at all,
really, and certainly not a real American -- because I voted for the losing
candidate on Tuesday. If you insist -- and you do -- I will rethink my
fundamental beliefs from scratch because they are shared by only 47 percent of
the electorate.
And please let me, or any other liberal, know if there is anything
else we can do to abase ourselves. Abandon our core values? Pander to yours?
Not a problem. Happy to do it. Anything, anything at all, to stop this shower
of helpful advice.
There's just one little request I have. If it's not too much trouble,
of course. Call me profoundly misguided if you want. Call me immoral if you
must. But could you please stop calling me arrogant and elitist?
I mean, look at it this way. (If you don't mind, that is.) It's true
that people on my side of the divide want to live in a society where women are
free to choose abortion and where gay relationships have full civil equality
with straight ones. And you want to live in a society where the opposite is
true. These are some of those conflicting values everyone is talking about. But
at least my values -- as deplorable as I'm sure they are -- don't involve any
direct imposition on you. We don't want to force you to have an abortion or to
marry someone of the same gender, whereas you do want to close out those
possibilities for us. Which is more arrogant?
We on my side of the great divide don't, for the most part, believe
that our values are direct orders from God. We don't claim that they are
immutable and beyond argument. We are, if anything, crippled by reason and
open-mindedness, by a desire to persuade rather than insist. Which philosophy
is more elitist? Which is more contemptuous of people who disagree?
As many conservative voices have noted, American society suffers from
a cult of grievance. To put it crudely, everyone wants some of what blacks got
from the civil rights movement: sympathy, publicity, occasional preferred
treatment and a general ability to put everybody else on the defensive. No
doubt liberals are responsible for this deplorable situation, and I apologize.
Again and again. As a softheaded liberal, I even like the idea that our
competitive culture has a built-in consolation prize.
But be fair! (A liberal whine, I know. Sorry.) Don't assert the
prerogatives of victory and then claim the compensations of defeat as well. You
can't oppress us and simultaneously complain that we are oppressing you.
Well of course you can do this, if you want. Who's to stop you? I
just kinda wish you wouldn't. If you don't mind my asking. Thanks. Sorry.
The stem cell lines available
for federally-funded research in the US have characteristics which mean they
may never be used for medical treatments in humans, a new study
suggests. Last week’s vote by
Californians to spend $3 billion on human embryonic stem cell research
could speed progress on the promising but controversial field and make the
state the epicenter of such research.
Seems to me
November
3, 2004: Yesterday I spent
from 6:15am until 8:45pm at the
The
turnout was tremendous – 609 voters in the two precincts at the
The
anticipated challenging simply didn’t happen. Rather, both Mike and I really were just
another set of much needed hands to help out.
The voters themselves were determined, and the number of apparent first
time voters, both young and middle-aged, was astounding. A few people were impatient with the long
lines, but even they were only vociferously voicing complaints that were well
founded.
Small
consolations department:
Between 72% and 78% of Jews
voted for Kerry.
Cuyahoga County went 66.4%
Kerry, 33% Bush.
November 2, 2004: 6am: The Sixth Circuit reversed the
lower courts and held that designated challengers can appear at the polls. I’m off to the polls . . .
November 1, 2004: Early this morning, U.S.
District Judge Susan Dlott for the Southern District of Ohio found that the
application of Ohio's statute allowing “designated challengers” at
polling places is unconstitutional.
The judge’s order is here. The
Republicans plan to appeal to the 6th Circuit Court of
Appeals. I received my assignment as a
designated challenger from the Democratic Party on Saturday. I was assigned to a polling place in a ward
of
Some interesting
matters from Judge Dlott’s order
(the “Order”): at least one
Republican challenger testified that he had been instructed to challenge voters
who had requested absentee ballots and that he had not received Secretary of
State Ken Blackwell’s memorandum setting forth instructions covering
challengers. A challenge based on
receipt of an absentee ballot is not a challenge permitted under the applicable
statute. Order at 7. In fact, the
witness did not know who had compiled the list of voters he was instructed to
challenge or whether the list was reliable.
The statute requires that any challenge be based on the personal
knowledge of the challenger. Order at
8. It’s no wonder that Judge Dlott
found that
“[i]n the absence of any statutory guidance whatsoever governing the
procedures and limitations for challenging voters by challengers, and the
questionable enforceability of the State’s and County’s policies
regarding good faith challenges and ejection of disruptive challengers from the
polls, there exists an enormous risk of chaos, delay, intimidation, and
pandemonium inside the polls and in the lines out the door. . . . . The Ohio
Legislature is mindful of how important every minute is on election day: no voter
is allowed to occupy a voting compartment or use a voting machine more than
five minutes when all the voting compartments or machines are in use and voters
are waiting to occupy them. Ohio Rev.
Code § 3505.23. The sheer number of
people present in and around the polling place, the unprecedented number of
newly registered voters, and the presence of inexperienced challengers, lacking
any significant training and limited by precinct workers who have never before
had to deal with such a situation, creates an extraordinary and potentially
disastrous risk of intimidation and delay. Such intimidation and delay are
virtually certain given the complete confusion among designated challengers and
even between the two top elections officials of
Meanwhile, U.S. District Judge
John Adams for the Northern District of Ohio has issued an order enjoining
designated challengers from challenging voters’ qualifications.
The
public interest is best served if the Court prohibits Defendants from implementing
the portions of § 3505.20 that permit challenges by appointed challengers. The
compelling purposes behind § 3505.20 – to prevent voter fraud and ensure
that only qualified electors vote – are not thwarted by such a
prohibition. Under the Court’s ruling, the election officials to whom §
3505.20 refers are permitted to challenge voter eligibility on the basis of
citizenship, age, and residency, and thus provide adequate assurance that only
individuals meeting the voter eligibility requirements of § 3503.01 cast
ballots on November 2. Accordingly, the public interest in unimpeded access to
the ballots is achieved without sacrificing the State’s interest in
preventing voter fraud.
So, I don’t
know whether I’ll be a designated challenger tomorrow or not, and
I’m not sure at all when I will, though there’s still the
possibility the Sixth Circuit will clarify matters.
October
29, 2004: Bruuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuce! He’ll
be in
The Ohio Republican party has
mounted a major effort to challenge 23,000 new voter registrations.
On Wednesday, Judge Susan J. Dlott of
"’The state party made us look bad,’ said Alex
Arshinkoff, the county Republican chairman and one of two Republican members of
the board of elections. He said the party's failure to provide evidence had
allowed the Democrats to shift the burden of proof to the challengers instead
of the challenged.” According to the Akron Beacon
Journal, Arshinkoff compared the
proceedings to a ``train wreck'' and said representatives from the Ohio
Republican Party should have been at the hearing to defend the lists of challenges
that it prepared.
An e-mail I received this morning from Ohio
Secretary of State Ken Blackwell:
The Help America Vote Act and recent federal court decisions have
affirmed
The real point of the e-mail seems to be to trumpet Blackwell’s
litigation success in the 6th Circuit that I referred to yesterday.
YourVoteCountsOhio.org doesn’t actually prove very helpful in telling you
where you’re supposed to vote. The
best it does for me is give me and e-mail and telephone number for the Cuyahoga
County Board of Elections and instructions to contact the
board if I have any questions.
The line was busy when I tried to call it. There’s a shock. So: your vote counts, but you better be in
the right place, and we’re not going to help you find it.
Lorain Democratic Rep. Sherrod
Brown on Thursday agreed to step down as a presidential elector for John Kerry
after discovering the U.S. Constitution bars federal officeholders from the
largely ceremonial role.
“Residents of
Can we make it official yet?
October 28, 2004: Before you get caught up in
the predictive power of “election markets,” read this.
“A federal judge ruled for Democrats Wednesday and stopped election officials
from conducting hearings in Cuyahoga and Medina counties to question thousands
of voters whose eligibility to cast ballots has been challenged by the Ohio
Republican Party. Officials said most of the disputed voter registrations -
17,000 to 18,000 - are in Cuyahoga County, where an unprecedented series of
hearings were scheduled to start today at the Cleveland Convention
Center.“
Diana Botluk’s Election Concerns: Will Your
Vote Count? Are You Sure?
Last week the 6th Circuit
Court of Appeals ruled that voters using provisional ballots to vote in Ohio
(because for some reason their names don’t show up on the rolls of
registered voters at the polling place) must do so in the precinct in which
they reside. That is all well
and good, but one thing I’ve learned already in my role as a designated
challenger is that there’s no reliable way for an
These problems with simple things –
where do I vote? – make me wonder a lot why we don’t have uniform
election standards across the country. I
know elections are traditionally matters delegated to the states, but
isn’t it time that we knew that one vote in this country counted as one
vote no matter where it was cast?
More on the training of Ohio
poll workers.
October
27, 2004: I am a Democratic Party
“designated challenger” for Cuyahoga County.
We also are there to make sure the poll
workers do something they’re required to do this year: tell the voter to
clean the chads off their ballots.
October
26, 2004: Mounting evidence
that Kerry will win . . . . At the Cleveland Plain Dealer, the editorial staff
voted 5-2 to endorse Kerry, but the publisher wants Bush
and originally was reported to have announced the paper would endorse him. The result?
“We
make no endorsement for president this year.” The Plain Dealer thus joins such courageous
stalwarts of the media as the Tampa Tribune, which explained last week
“Why We Cannot Endorse Bush for Re-Election.” Seems to me some support Bush normally could
count on in swing states isn’t there.
And on Sunday, I attended an enthusiastic Jews for Kerry rally here in
Cleveland with Cam Kerry (John’s brother, who converted to Judaism 25
years ago when he married his wife), Charles Schumer, Carl Levin, and Alan
Dershowitz. This is a crowd that wonders
what the hell people mean when they ask “Is Ohio still God’s
country?”
Richard
McCann, a retired swift boat officer who served with John Kerry in
I was one of the Swift boat veterans not interviewed by John E.
O'Neill for his book, "Unfit for Command," no doubt because I have
positive recollections of Mr. Kerry. During our time in the service together, I
found Mr. Kerry to be a brave and honorable man, never refusing an order,
always willing to put himself in harm's way to engage the enemy.
By questioning Mr. Kerry's military service, these veterans - and the
people backing them - are dishonoring only themselves.
Michah Schwarzman of Crooked
Timber has a thoughtful piece on Richard Posner’s recent
repetition of long-standing criticisms of law reviews.
October
25, 2004: Former Bush voters explain why
they’re voting for Kerry.
More than one person has
suggested that it’s not fun living in
In the wake of the many scandals that have disgraced our government
in the last four years, who is accountable? Will the secretary of defense be
dismissed because of what happened at Abu Ghraib? Will the attorney general be
dismissed for what is happening at
We all know the answers. But in the eyes of the world the ultimate
accountability lies not with the President or his men. In the end it lies with
the sovereign people of the
It may take many years to recover what we have lost. We cannot
restore the lives lost in
There are two and only two memorable decisions George W. Bush made as
“owner” of the Texas Rangers.
He traded Sammy Sosa, and he was the only major league
owner who voted against the wild card playoff format, declaring at the time
that “History will prove me right.”
October 22, 2004: It is fun living in the eye of the election
storm. I’ve seen Bruce Springsteen play his own solo guitar version of
the Star Spangled Banner (reminding me of Jeff Bridges’ rant in Masked & Anonymous that Jimi Hendrix’
own electric version at Woodstock was a proud announcement that he – in
all his glorious blackness and freakiness -- was an American too), I watched the Vice Presidential debate on outdoor big
screens on the grounds of the university that employs me,
John Edwards came out at 11:30pm that same night for a campaign rally, political ads dominate the airwaves, every
other day it seems I’m polled at home by telephone (though some of the polls, of course, are not polls at all
but, rather, thinly disguised propaganda), and I’m lined up to
help along with a crew of other lawyers on election day. But I have no idea how things are going to
turn out. There is, however, growing
optimism among Kerry supporters here, particularly I think because of the number of new voter
registrations, especially in the predominantly Democratic Cuyahoga County.
October 20, 2004: Defeat
Issue 1! On November 2
Ohio voters consider Issue 1, which is a proposed state constitutional
amendment stating as follows: "This state and its political subdivisions
shall not create or recognize a legal status for relationships of unmarried
individuals that intends to approximate the design, qualities, significance or
effect of marriage." It’s no
wonder Ohio’s Republican
governor and two Republican senators have come out against Issue 1. As Phil Martin writes:
Issue 1, if passed by voters,
would add a so-called “same-sex marriage ban” to
Issue 1 could have been a
gay marriage ban, if the supporters had asked voters to approve just the first
sentence of the two-sentence proposal. That sentence reads: “Only a union
between one man and one woman may be a marriage valid in or recognized by this
state and its political subdivisions.”
And you know what? If that was
all that appeared on the proposal, the supporters of Issue 1 would win approval
in a landslide. In states like
But the supporters of Issue 1
didn’t leave well enough alone. Instead of going with a sure-win,
one-sentence amendment, they added the second sentence, which reads:
“This state and its political subdivisions shall not create or recognize
a legal status for relationships of unmarried individuals that intends to
approximate the design, qualities, significance or effect of marriage.”
Besides being poorly written,
that sentence opens a big ol’ can of worms—worms that the
supporters of Issue 1 don’t want voters to focus on or learn about. That
one sentence is the Achilles heel of their proposal.
It’s one thing to ban gay
marriage (sentence one). It’s a totally different thing to ban anything
that any unmarried couple (gay or straight) can possibly do to
legally solidify their relationship (sentence two).
Because it’s so broadly
written, the second sentence of the proposal leads to a lot of potential
problems here in the Buckeye state. For example:
• If a man beats his
live-in girlfriend, will she be protected by
• If a 72-year-old woman
has medical power of attorney for her 77-year-old partner, and he’s
hospitalized with a serious illness at
• Will the hospital even
allow the woman to visit him (since she’s not his next of kin and they
aren’t married)?
• Will the state of
• Will unmarried people be
allowed to adopt children?
• Will the state still be
able to go after deadbeat dads who never married their child’s mother,
for economic support?
• Will employees of the
state of
• Since a large number of
Fortune 500 companies offer domestic partnership rights to their employees, do
you think they will see
• What’s going to
happen to all of the companies in Ohio that already offer domestic partnership
benefits to their employees (like the three largest private employers in
Franklin County: the Limited, Nationwide and J.P. Morgan Chase)? Can they still
offer the benefits? Or will they, at the behest of their employees, start to
look to other states to relocate?
• How many people who now
have health insurance will suddenly lose it? (And guess who ends up picking up
the tab when these newly uninsured folks come down with a catastrophic
illness—
• Will an unmarried
couple even be allowed to purchase a home together?
When confronted with questions
like this, Phil Burress, chair of the Ohio Campaign to Protect Marriage (the
group pushing for Issue 1), answered in a September 24 Columbus Dispatch article:
“That’s a question lawyers will have to debate.”
Yup, the lawyers are going to have to figure
out a whole lot of things if Issue 1 passes. And it’s going to cost
taxpayers millions of dollars, since we’re the ones who will pay to
defend
October
15, 2004: Paul Sheridan raises some
interesting questions about Dick Cheney’s call for limits on
remedies for personal injury plaintiffs:
In
September 2003, while promoting trial attorney Lisa Murkowski for the U.S.
Senate, Cheney exclaimed, "We need legal reform because the strength of
our economy is undermined by frivolous lawsuits." But before resigning as
CEO to pursue public service, Cheney's Halliburton filed more than 150 lawsuits
during 1995 through 1999, averaging about 30 per year. In one lawsuit,
multi-billion-dollar Halliburton sued Viking Trucking in small claims court for
$1,500. Frivolous?
While
Cheney denounces lawyers who represent taxpayers in lawsuits against business,
he relishes the lawyers who argued at the U.S. Supreme Court against a
My
research found no disdain by Cheney for lawyers who are defending Kenneth Lay,
the man responsible for destroying the retirement lives of thousands of Enron
employees.
Cheney
had no problem with the lawyers and the "shredding parties" of early
2001, turning the Enron-Cheney-Taliban memos into decoupage just before 9/11.
The
American Trial Lawyers Association explains, "The Bush-Cheney folks love
lawyers. They love lawyers who represent Enron and Firestone and the tobacco
industry. The lawyers they don't like are the lawyers who represent people who
are injured through no fault of their own."
October
14, 2004: “At least 11 al-Qaeda suspects
have “disappeared” in U.S. custody, Human Rights Watch
said in a report released
today.
October
11, 2004: Jacques Derrida died last
Friday.
Now available online: The
Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas,
edited by Philip P. Wiener and published by Charles Scribner's Sons, New York,
in 1973-74.
October
8, 2004: Paul Bremer writes in
today’s New York Times that his belief the U.S. used too few
troops in the Iraq invasion is meaningless because the rejection of his view by
Bush was simply an honest disagreement on one matter and that on every other
conceivable issue concerning the “War on Terror” he is a zealous
supporter of administration decisions. He misses the real significance of
his understanding of needed troop levels: the failures of this war – including
the U.S. failure yet to secure anything resembling the degree of peace
necessary to civic stability, much less the absence of flower-throwing crowds
expressing an enthusiastic embrace of democracy – were not only
predictable, they were predicted.
This administration, in short, is incompetent, and
people like Tom Friedman who are only
realizing it now, after we’re $200 billion dollars and over a
thousand dead into a war against a country that posed little threat to us,
deeply frustrate me. The problem is from the beginning
Bush has based policy not on good advice (like Bremer’s on troop levels),
but instead on whether the chosen policy will reward his administration’s
friends.
“Fifty Billion” sings The
Billionaires are in the House. See the video too.
Salon’s War Room warns
us that when Bush tells us tonight that in September 96,000 thousand jobs last
month, that Kerry’s tax plan will increase taxes on 900,000 small
business owners, and that Kerry’s health care plan will require 8 million
Americans to change their health care coverage, he’ll be leaving out the
context: this country needs 150,000 jobs a month to keep up with population growth,
Kerry’s tax plan will not raise taxes on 32 million small business
owners, and 235 million Americans won’t have to change their health
coverage under Kerry’s health plan.
October 7, 2004: Tort Reform?
“The numbers show that lawsuits are an insignificant cost both to
businesses and to health providers, for whom they represent less than 2 percent
of spending. In short, the lawsuit-abuse crisis is a hoax. Yet the Republican
right has launched one of the great propaganda blitzes of recent American
history to yank the teeth from the civil jury.”
“The truth is,
there is hardly an area of life that will not be affected by the judicial
appointments made in the coming years. Will the courts continue to
dismantle your right to sue state governments in federal courts? By 5 to 4, the
Supreme Court decided that federal protections against age discrimination don't
apply to state workers. (More recently it upheld the Americans with
Disabilities Act--insofar as it applied to the right of citizens not to have to
crawl up the courthouse steps.) On the same states' rights theory, by 5 to 4 it
threw out parts of the Violence Against Women Act. The Patriot Act? Immigrants'
rights? The environment? Ballot issues, à la
The Nobel Prize in Literature
for 2004 was awarded yesterday to Elfriede Jelinek, an Austrian
novelist, poet, playwright, and translator.
October
6, 2004: Benjamin Friedman in the New York Review of Books
explains that a fundamental difference between Kerry and Bush is that
Bush’s domestic policies reward income earned on investments while
Kerry’s reward income earned from work:
Judging
from the economic proposals that the two candidates have offered, and in
President Bush's case from those he has actually carried out during his first
term, the fundamental economic issue of this election involves the respective
roles of work and saving—of labor and capital—in the economy we
seek to create. Do we value and encourage one, or the other, or both? Do we
look to income earned from one, or the other, or both, to pay for what we
collectively undertake as a society, whether in waging war in
October
5, 2004: Bob Dylan's Chronicles:
Vol. One was published today by Simon & Schuster. The book is the first
in a series of Dylan’s autobiographical writings. Here is an excerpt and an interview from
Newsweek, and here’s Janet Maslin's review in
today's NY Times.
October
1, 2004: Two days ago the Commerce
Department announced that the GDP for the second quarter of this year was 3.3%,
up from its earlier estimate of 2.8%. Naturally, this evidence of greater than
expected growth was cited as support for President Bush’s policies. Of course, it is also -- as Paul Krugman wrote in the New York Times three weeks ago, on
September 10 – evidence supporting the wide spread belief that “the
Bush administration routinely fakes even its short-term budget forecasts for
the purposes of political spin”:
For
example, back in February the Center on Budget and Policy Priorities accused the
Bush administration of, in effect, playing three-card monte with budget
forecasts. It pointed out that the administration's deficit forecast was far
above those of independent analysts, and suggested that this exaggeration was
deliberate.
"Overstating
the 2004 deficit," the center wrote, "could allow the president to
announce significant 'progress' on the deficit in late October - shortly before
Election Day - when the Treasury Department announces the final figures."
Was
this a wild accusation from a liberal think tank? No, it's conventional wisdom
among experts. Two months ago Stanley Collender, a respected nonpartisan
analyst, warned: "At some point over the next few weeks, the Office of
Management and Budget will release the administration's midsession budget
review and try to convince everyone the federal deficit is falling. Don't
believe them."
He
went on to echo the center's analysis. The administration's standard procedure,
he said, is to initially issue an unrealistically high deficit forecast, which
is "politically motivated or just plain bad." Then, when the actual
number comes in below the forecast, officials declare that the deficit is
falling, even though it's higher than the previous year's deficit.
September 30, 2004: The Bush and Kerry campaigns entered into a
“memorandum of understanding” setting forth the rules governing
tonight’s 90 minute, televised exchange of sound bites. Excerpts of the agreed upon
rules are set forth here. Among other rules, the candidates
“may not ask each other direct questions.” I’m beginning to wonder why we
bother.
And as long as we’re
looking back four years, why not remember that immediately in the aftermath of
his appointment by the Five Justices, Bush urged reconciliation and
bipartishanship:
An hour after Vice President
Gore telephoned Bush to concede defeat and delivered a gracious speech to the
nation, Bush responded with a paean to the bipartisan--using the word three
times and devoting much of his speech to calls for "common ground,"
"common sense," "common courtesy" and "common goals."
September 28, 2004: I get it! The Republicans don’t like
the idea of actually counting votes.
What’s the point, after all?
We already have a president.
In
In Bush v. Gore, the
five justices who chose our current President concluded that the Florida
Supreme Court’s decision allowing different Florida counties to employ different
recount procedures constituted a denial of equal protection: “[t]he
question before the Court is not whether local entities, in the exercise of
their expertise, may develop different systems for implementing elections.
Instead, we are presented with a situation where a state court with the power
to assure uniformity has ordered a statewide recount with minimal procedural
safeguards. When a court orders a statewide remedy, there must be at least some
assurance that the rudimentary requirements of equal treatment and fundamental
fairness are satisfied.” The Eleventh Circuit Court of
Appeals’ reinstatement of a lawsuit filed by Florida representative
Robert Wexler describes a situation in which brother
Bush’s new voting machines seem to pose even greater inequities with
respect to possible recount procedures: “Fifteen
September 27, 2004: SCOTUSblog
has posted the October 2004 Vanity Fair article by David Margolick
detailing the events in late 2000 leading to the Supreme Court’s
appointment of our current president.
According to Forbes Magazine,
there are now 313 billionaires in
Joseph Epstein in the New York Review of Books:
“Money is the mother's milk of American politics, the source of its bone
and muscle. Citizens who might like to know how political money is raised in
exchange for political favors, often against the public interest, should read The
Hammer [Lou Dubose and Jan Reid, The Hammer: Tom
DeLay: God, Money, and the Rise of the Republican Congress (Public Affairs,
2004)], a political profile of Tom DeLay, who from his safe Texas seat controls
the House of Representatives and thus enough of the legislative agenda to
reward and punish Washington's K Street lobbyists. These lobbyists supply the
funds which DeLay directs to the congressional campaigns of candidates loyal to
him, and in return accommodates special interests who then reward their
lobbyists. The process by which lobbyists are enriched and DeLay's power is
enhanced is simple, legal, and disgusting. Since the major media have not
covered this story, The Hammer should be of interest to readers who want
to know how the system actually works. “
James Carville: “Back in 2000 a Republican friend warned me that if I
voted for Al Gore and he won, the stock market would tank, we'd lose millions
of jobs, and our military would be totally overstretched. You know what? I did
vote for Gore, he did win, and I'll be damned if all those things didn't come
true!"
According to a study conducted
by Kroll Security International
on behalf of the U.S. Agency for International Development, recent attacks by insurgents in
Iraq suggest a broad and intensifying campaign of violence that contrasts
sharply with assessments by Bush administration officials and Iraq's interim
prime minister that the instability is contained to small pockets of the
country. Attacks over the past two weeks have killed more
than 250 Iraqis and 29
September 24, 2004: The U.S. House voted 247-173
yesterday to approve the so-called "Pledge Protection Act."
The measure, H.R. 2028, bans all federal courts, including the U.S. Supreme
Court, from considering constitutional challenges to the Pledge. Interesting tactic – to overturn
judicial interpretation of the First Amendment would require a constitutional
amendment, but passing a constitutional amendment would be too difficult, so
instead our august representatives have purported instead to strip the courts
of jurisdiction to decide First Amendment matters pertaining to the
Pledge. The House is grandstanding,
acting as if it can accomplish through indirect legislation what it isn’t
permitted to accomplish directly. While
well-established precedent establishes that a state law requiring children to
recite the Pledge is unconstitutional, if the “Pledge Protection
Act” were taken at face value, no court could actually invalidate such a
statute. I’m sick of these empty
gestures made for political purposes. Is
it possible for the House to be more cynical?
September 23,
2004: From the American Constitution
Society for Law and Policy: “For the third time, environmental advocates have
discovered passages in the Bush administration's proposal for
regulating mercury pollution from power plants that mirror almost word for word
portions of memos written by a law firm representing coal-fired power plants, The Washington
Post reports. Sen. James M. Jeffords (I-Vt.) said the revelation
that the EPA adopted the same wording as an industry source ‘no longer
comes as much of a surprise.’”
September 22,
2004: The Iraq Body Count website now estimates that at least
12,800 and as many as 14,843 Iraqi civilians have been killed during the war
and occupation. And Juan Cole points out
that “violence killed 300 Iraqis last week, the equivalent
proportionately of 3,300 Americans. What if 3,300 Americans had died in car bombings,
grenade and rocket attacks, machine gun spray, and aerial bombardment in the
last week? That is a number greater than the deaths on September 11, and if
Bill Moyers on why journalism matters.
September 9,
2004: Isabel Hilton in the Guardian:
“As the drama of Beslan was entering its final hours, George Bush was
bidding for re-election on the promise of security to the American people, a
security premised on the willingness to use overwhelming military force. It was
the same promise that Putin gave to the Russians and Ariel Sharon to the people
of
September 7,
2004: Are we safer than we
were on September 11? An NBC News analysis
of Islamic terrorism since Sept. 11, 2001, shows that attacks are on the rise
worldwide — dramatically.
What Partners Want From New
Associates.
September 3,
2004: Professor Mark Cooney of
Thomas M. Cooley Law School addresses common misconceptions law students have
about legal writing in practice:
Myth 7: It’s the reader’s fault if he or she misunderstands
what you wrote.
When you start your first job as a summer clerk or lawyer, your bosses and co-workers will edit your work and suggest changes. You may feel a sting of disappointment, take offense, silently reject the criticism, or get defensive. You may try to explain to the reader that what you wrote really was clear. Don’t. Adopt the attitude that the customer is always right--and your reader is your customer. Accept and embrace feedback at work.
Remember that if
what you wrote was truly clear and seamless, the reader wouldn’t have
felt the urge to suggest a change. A reader rarely will pick up the red pen
unless something needs attention. If your reader can’t follow what
you’re saying, you didn’t write it well enough--period. So even if
you don’t agree with a specific edit, you’re on notice that you
need to do something to clean up your document. And you’ll learn from the
feedback.
Even the
world’s best writers have editors. Don’t reject edits. Address the
problem and learn from the feedback. And when you’re editing your own
writing on the job, always strive to keep your future customer happy. After
all, your reader will be deciding your case or issuing your paycheck.
September 2, 2004: In 1972, in U.S. v. U.S. District Court,
407 U.S. 297, 315, the United States Supreme Court stated that "[t]he
danger to political dissent is acute where the Government attempts to act under
so vague a concept as the power to protect 'domestic security.' Given the
difficulty of defining the domestic security interest, the danger of abuse in
acting to protect that interest becomes apparent." In 2004, The Bush Justice
Department has blacked that quotation out of a complaint filed by the ACLU
under regulations permitting it to redact from documents it releases those
passages it believes pose too great a risk to national security.
September 1, 2004: Adam Gopnik on interpreting
war:
History does not offer lessons;
its unique constellations of contingencies never repeat. But life does offer
the same points, over and over again. A lesson is many-edged; a point has only
one, but that one sharp. And the point we might still take from the First World
War is the old one that wars are always, in
August 30, 2004: Judge Richard Posner explains well an instance in
which people act in a way contrary to law, but fails to point out
that in his example, as is so often the case, this departure from the law is
made possible by great wealth. In short,
if you’re wealthy enough to force someone to defend a lawsuit, even a
lawsuit without merit, you’ll accomplish all or part of what you would if
you were legally right:
Here is a very worrisome problem
concerning fair use. It has to do with a dichotomy long noted by legal thinkers
between the law on the books and the law in action. They often diverge. And
fair use is an example of this divergence. As I said in an earlier posting,
fair use often benefits rather than harms the copyright holder. However, it
doesn’t always; moreover, even if a copyright holder is not going to
lose, and is even going to gain, sales from a degree of unlicensed copying, if
he thinks he can extract a license fee, he’ll want to claim that the
copying is not fair use; and finally, because the doctrine has vague contours,
copyright owners are inclined to interpret it very narrowly, lest it expand by
increments.
The result is a systematic overclaiming of copyright, resulting in
a misunderstanding of copyright’s breadth. Look at the copyright page in
virtually any book, or the copyright notice at the beginning of a DVD or VHS
film recording. The notice will almost always state that no part of the work
can be reproduced without the publisher’s (or movie studio’s)
permission. This is a flat denial of fair use. The reader or viewer who thumbs
his nose at the copyright notice risks receiving a threatening letter from the
copyright owner. He doesn’t know whether he will be sued, and because the
fair use doctrine is vague, he may not be altogether confident about the
outcome of the suit. . . .
Here’s a reductio ad absurdum of folding in the face of
copyright overclaiming: “While interviewing students for a documentary
about inner-city schools, a filmmaker accidentally captures a television
playing in the background, in which you can just make out three seconds of an
episode of ‘The Little Rascals.’ He can’t include the
interview in his film unless he gets permission from the copyright holder to
use the three seconds of TV footage. After dozens of phone calls to The Hal
Roach Studios, he is passed along to a company lawyer who tells him that he can
include the fleeting glimpse of Alfalfa in his nonprofit film, but only if
he’s willing to pay $25,000. He can’t, and so he cuts the entire
scene.” Jeffrey Rosen, “Mouse Trap: Disney’s Copyright
Conquest,”
In a video
originally posted on the Web by a pro-Kerry organization in Austin, Texas, Ben
Barnes, a former lieutenant governor of Texas, apologized for his role in
getting a young George W. Bush into the Texas Air National Guard while young
men who were not from prominent or wealthy families "died in
Vietnam."
Many thought they had never seen
An online
handbook of figures of speech.
August 21, 2004: Kieran Healy at Crooked Timber has a brilliant idea about classroom
technology. J
August 20, 2004: More on the gender neutral
pronoun problem.
Wired News reflects on and
announces a change in its capitalization practices.
August 19, 2004: The Secrets of Online Document
Retrieval (for lawyers).
The U.S. Court of Appeals for
the Ninth Circuit decided today in Metro-Goldwyn
Mayer Studios v. Grokster (pdf) that distributors of
peer-to-peer file-sharing computer networking software may not be held
contributorily or vicariously liable for copyright infringements by users.
August 17, 2004: William J. Dwyer on persuasion
during jury voir dire.
August 16, 2004: Judge Sam Sparks of the U.S. District Court
for the Western District of Texas recently entered an order in a case expressing
his profound disgust with the attorneys representing the parties:
Be it remembered
on the 21st day of July 2004 and the Court took time to make its daily review of
the above-captioned case, and thereafter, enters the following:
When the undersigned accepted the appointment from the President of the United
States of the position now held, he was ready to face the daily practice of law
in federal courts with presumably competent lawyers. No one warned the
undersigned that in many instances his responsibility would be the same as a
person who supervised kindergarten. . . .
The Court simply wants to scream to these lawyers, "Get a life" or
"Do you have any other cases?" or "When is the last time you
registered for anger management classes?" Neither the world's problems nor
this case will be determined by an answer to a counterclaim, which is four days
late, even with the approval of the presiding judge.
If the lawyers in this case do not change, immediately, their manner of
practice and start conducting themselves as competent to practice in the
federal court, the Court will contemplate and may enter an order requiring the
parties to obtain new counsel.
Tom
Payne’s guide to book reviewer jargon.
President Bush and the
Republicans in the Senate have failed — for the moment — to bring
the Constitution into conformity with Judeo-Christian teachings. But even if
they had passed a bill calling for a constitutional ban on gay marriage, that
would have been only a beginning. Leviticus 20:13 and the New Testament book of
Romans reveal that the God of the Bible doesn't merely disapprove of
homosexuality; he specifically says homosexuals should be killed: "If a
man lies with a male as with a woman, both of them have committed an
abomination; they shall be put to death.”
God also instructs us to murder people who work on the Sabbath, along with
adulterers and children who curse their parents. While they're at it, members
of Congress might want to reconsider the 13th Amendment, because it turns out
that God approves of slavery — unless a master beats his slave so
severely that he loses an eye or teeth, in which case Exodus 21 tells us he must
be freed.
What should we conclude from all this? That whatever their import to people of
faith, ancient religious texts shouldn't form the basis of social policy in the
21st century. The Bible was written at a time when people thought the Earth was
flat, when the wheelbarrow was high tech. Are its teachings applicable to the
challenges we now face as a global civilization?
August 13, 2004: The Genius Of Language, edited by
Wendy Lesser,
collects essays by fifteen writers whose first language was one other than
English but who now write in English.
"I live on," writes Ha-yun Jung, "not feeling whole in
Korean or in English. For me, one language is complementary to the other, one
always lacking a capacity that the other has. And I have a fear, constantly, of
not quite being understood in just one language: Do you know what I am
trying to say? Do you know who I am?"
August 11, 2004: After Babel, a new common
tongue:
In the 17th century, educated
people across central
Now the region's new language of
choice for the 21st century is percolating upwards through the education
system, and downwards from the business and political elite. It will be
English, studied by three out of four secondary-school pupils from the Baltic
to the Balkans.
From Crooked Timber:
“If liberty means anything
at all, it means the right to tell people what they do not want to hear.”
So said George Orwell, in a quote adopted by British blog Harry’s Place. It is a quote worth
recalling in the light of the decision of the
Iraqi government to close down Al Jazeera’s
July 29, 2004: From Snopes.com, the
explanation from George H.W. Bush and Brent Scowcroft for their decision in
1991 not to overthrow Saddam Hussein:
Trying to eliminate Saddam, extending the ground war into an
occupation of
July 28, 2004: An edited extract from The
Economics of Innocent Fraud: Truth for Our Time, by JK Galbraith:
As the corporate interest moves
to power in what was the public sector, it serves the corporate interest. It is
most clearly evident in the largest such movement, that of nominally private
firms into the defence establishment. From this comes a primary influence on
the military budget, on foreign policy, military commitment and, ultimately,
military action. War. Although this is a normal and expected use of money and
its power, the full effect is disguised by almost all conventional expression.
Given its authority in the
modern corporation it was natural that management would extend its role to
politics and to government. Once there was the public reach of capitalism; now
it is that of corporate management. In the
Defence and weapons development
are motivating forces in foreign policy. For some years, there has also been
recognised corporate control of the Treasury. And of environmental policy.
Arianna Huffington on the
Republican mantra that John Kerry is a flip-flopper:
“Senator Kerry has been in
Or as Dick “Not Peaches and Cream” Cheney ominously
put it at a Republican fundraiser:
“These are not times for leaders who shift with the political winds,
saying one thing one day and another the next.”
I couldn’t f---ing agree more, Mr. Cheney. But it’s
your man George W. who can’t seem to pick a position and stick to it.
He’s reversed course more times than Capt. Kirk battling Khan in the midst of the
Mutara Nebula. Gone back on his word more times than Tony Blundetto.
Flip-flopped more frequently than a blind gymnast with an inner-ear infection.
The list of Bush
major policy U-turns is as audacious as it is long. Among the whiplash-inducing
lowlights:
In September 2001, Bush said capturing bin Laden was “our
number one priority.” By March 2002, he was claiming, “I
don’t know where he is. I have no idea and I really don’t care.
It’s not that important.”
In October 2001, he was dead-set against the need for a Department
of Homeland Security. Seven months later, he thought it was a great idea.
In May 2002, he opposed the creation of the 9/11 Commission.
Four months later, he supported it.
During the 2000 campaign, he said that gay marriage was a
states’ rights issue: “The states can do what they want to
do.” During the 2004 campaign, he called for a constitutional ban on gay
marriage.
Dizzy yet? No? OK:
Bush supported CO2 caps, then opposed them. He opposed trade
tariffs, then he didn’t. Then he did again. He was against nation
building, then he was OK with it. We’d found WMD, then we hadn’t.
Saddam was linked to Osama, then he wasn’t. Then he was … sorta.
Chalabi was in, then he was out. Way out.
In fact, Bush’s entire
We didn’t need more troops, then we did. We didn’t
need more money, then we did. Preemption was a great idea — on to
And all this from a man who, once upon a time, made
“credibility” a key to his appeal.
Now, God knows, I have no problem with changing your mind
— so long as you admit that you have and can explain why. But Bush
steadfastly — almost comically — refuses to admit that
there’s been a change, even when the entire world can plainly see
otherwise. He’s got his story and he’s sticking to it. But that
darn Kerry, he keeps shifting his positions!
From Undernews, more on
how the Republicans merely hammer on
their talking points over and over and over until their audience is convinced
Kerry and Edwards are “liberals” who are “out of the
mainstream.”
From the Toronto Globe and
Mail, concerning the
Bush administration’s plans to postpone the
David Greenberg in the New
Yorker:
Bush has not been shy about
displaying his faith. Shortly after September 11, 2001, the President came
across Proverbs 21:15: “When justice is done, it brings joy to the
righteous but terror to evildoers.” Soon, “evildoers” became
his favorite term for Al Qaeda. Bush’s speechwriter, Michael Gerson, himself
an evangelical, laces the President’s addresses with seemingly innocuous
terms that the devout recognize as laden with meaning:
“whirlwind,” “work of mercy,” “safely
home,” “wonder-working power.” Phillips refers to a
study by the religion scholar Bruce Lincoln, who identified, in Bush’s
speech to Congress announcing the invasion of
But what’s wrong with an
infusion of religion into Presidential speeches or even policy? The Founders
may have believed in a separation between church and state, but the
Constitution’s secularism doesn’t prevent a President from drawing
on his religious beliefs in making decisions. Nor has Bush somehow
“imposed” his faith on others, however alienating some may find his
spiritual language to be. The problem lies, rather, in the specific ways in
which Bush uses religion. Abraham Lincoln, in his second Inaugural address,
invoked God, but he did so in a spirit of humility, questioning his own
certitude and thus inviting further questioning. Bush does the opposite: his
use of religion seems designed to remove any doubt—first in his own mind,
then in the public’s—about his course. It doesn’t assist Bush
with his reasoning; it substitutes for reasoning. Instead of providing a
starting point for careful judgments, it assures him that the instincts on
which he has based his policy are unerring.
July 15, 2004: This administration really
does believe that selling off public assets to the highest bidder is in the
public interest::
On Monday, Agriculture Secretary Ann Veneman announced a Bush
administration plan to scrap the hard-won Clinton-era “roadless
rule”—a move that Phil Clapp, president of National Environmental
Trust, ranks as “one of the top five biggest attacks on the environment
since the Bush administration set foot in the White House, not to mention the
single biggest giveaway to the timber industry in the history of the national
forests.”
The roadless rule, implemented in the final month of the
Maybe after all Paul Krugman was wrong when he
suggested, referring to the
Conservatives make a fetish out of privatization of government
functions; after the 2002 elections, President George W. Bush announced plans
to privatize up to 850,000 federal jobs. At home, wary of a public backlash, he
has moved slowly on that goal. But in
For example, the Pentagon has a well-established procurement office for
gasoline. In
What’s truly shocking in
July 14, 2004:
Jim Gill and Friends are outstanding local musicians
and people. Jim writes their songs and
plays guitar, and J and Ted are wonderful on percussion and, well, everything,
respectively. You can listen to some clips and buy their albums here.
June 24, 2004: Linguists have chosen "ilunga,"
from the Tshiluba language spoken in the south-eastern portion of the
Democratic Republic of Congo, as the world’s most difficult word to translate.
They say it means "a person who is ready to forgive any abuse for the
first time, to tolerate it a second time, but never a third time," but who
outside of
June 15, 2004: Kieran Healy on the torture
memos.
June
14, 2004: The Supreme Court
avoided deciding whether “under God” in the Pledge of Allegience does or does not violate
the First Amendment, determining instead that Ira Newdow does not have the
right to sue on behalf of his daughter because, although “Sandra Banning,
the mother of Newdow’s daughter,” and Newdow share
“‘physical custody’ of their daughter, . . . a state-court order granted [Ms. Banning]
‘exclusive legal custody’ of the child, including the sole right to
represent [the daughter’s] legal interests and make all decision[s] about
her education and welfare.” (citations to record omitted.) As Justice Stevens wrote in the opinion of the Court:
“When hard questions of domestic relations are sure to affect the
outcome, the prudent course is for the federal court to stay its hand rather
than reach out to resolve a weighty question of federal constitutional
law.”
Miami
University law professor Michael Froomkin writes on his blog about the 2002 Department of Justice
memorandum that advised torture of prisoners could be justified and
presented such a narrow definition of torture that the treatment "must be
equivalent in intensity to the pain accompanying serious physical injury, such
as organ failure, impairment of bodily function, or even death":
“Ultimately, the best legal commentary on this memo may
belong to Professor Jay Leno: ‘According to
the New York Times, last year White House lawyers concluded that President Bush
could legally order interrogators to torture and even kill people in the
interest of national security - so if that’s legal, what the hell are we
charging Saddam Hussein with?’ Remember: the lawyers who wrote this memo
were guilty of a lack of moral sense, and extreme tunnel vision fueled by a
national panic. The people who asked them to write it, who read it, and
especially any who may have acted on it — they’re people who really
have the most to answer for.”
June
10, 2004: Alan Berlow writes in The
Atlantic that as the legal counsel to Texas Governor George W. Bush,
Alberto R. Gonzales—now the White House counsel, and widely regarded as a
likely future Supreme Court nominee—prepared fifty-seven confidential
death-penalty memoranda for Bush's review. Never before discussed publicly, the
memoranda suggest that Gonzales repeatedly failed to apprise Bush of some of
the most salient issues in the cases at hand.
June 7, 2004: Michael Quinion examines the
stories that surround English words and phrases - and explains the truth behind
them.
June 4, 2004: Leon Wieseltier writes
intelligently about argument by analogy: “This is wartime,
which is no time to be soft. The terrorists are tough, and so we must be tough.
I am feeling tough, and toughly I feel also that too many children are being
killed by the right side in this war, by my side, by Americans and by Israelis,
in whose actions I am differently and willingly implicated. It is not all the
same war, of course, unless one accepts the Bush administration's reduction of
all our enemies into one enemy, a simplification better suited to sermons than
strategies.”
John Ashcroft’s Justice
Department might think that its one-sided evidence regarding Jose
Padilla’s alleged terrorism plans justifies depriving him of
constitutional rights, but as Dahlia Lithwick writes,
those constitutional rights make it a whole lot more likely the government has
the right guy and that he’s guilty of what it accuses him of:
“The U.S. Constitution
didn't simply hatch out of an egg one morning. Like the Magna Carta, the Bill
of Rights was largely conceived to correct for failures of earlier systems. In
1603 Sir Walter Raleigh was tried for treason and not
permitted to cross-examine his accuser. This, it turns out,
engendered unreliable evidence. The Sixth Amendment's confrontation clause was
the constitutional remedy for this problem. Unremitting and unwanted prosecutorial interrogation
could lead to false confessions. This made for unreliable evidence. The Fifth
Amendment was, in part, the constitutional remedy for this. Years of delay
prior to trials degraded evidence. The Sixth Amendment's right to a speedy
trial was the constitutional remedy for this. Indefinite government detention
without charges led to innocent men languishing in prison without recourse. The
right to habeas corpus is thus codified in Article I, Section 9 of the
Constitution to remedy this. We sometimes forget that the purpose of these and
other constitutional protections is not only to let guilty guys roam free
(attractive though that prospect may seem), the purpose is also to protect the
quality of the evidence used in criminal trials. A conviction based on a tortured
confession isn't justice. It's theater.”
June 1, 2004: Bill McKibben, in reviewing several books on environmental
policy, writes:
“Two
of the books under review, Bush Versus the Environment and Strategic
Ignorance, include climate and energy policy as one example of many in a
catalog of administration environmental follies. But it must be said that
criticizing Bush's policies on the environment is depressingly easy to do. For
more than three years now, day after day and week after week, a small circle of
political appointees at the EPA, the Forest Service, the Interior Department,
and the Department of Agriculture have proceeded methodically to wreck the
system of environmental oversight that dates back to the Nixon administration.
Apart from their silence on global warming, they have overturned rule after
regulation, largely ceased enforcement actions concerning pollution of the
atmosphere and water, and reined in inspectors. Their work is not inspired by a
grand ideological vision—it's not like Bush's foreign policy, say, with
its idea of
“The scale of this assault
on the environment is so large as to be numbing. With a hundred battles
occurring simultaneously and without a majority in either chamber of Congress
to hold hearings or issue subpoenas, the environmental movement has been almost
paralyzed. In Congress and the administration, loss has followed loss in such
steady succession that even the most conventional environmentalists, usually
bipartisan to a fault and reluctant to jump into electoral politics, now find
themselves with a single goal: defeating Bush in November.”
May 19, 2004: Lawyers running opposition
research: a BBC documentary titled Digging
the Dirt, which was filmed during the 2000 campaign and never
aired in the United States, centers on a team of Republican opposition
researchers —a species that has existed in politics for eons but had
recently undergone an evolutionary leap. From deep within the Republican
National Committee headquarters the BBC tracked the efforts of this team, whose
job it was to discredit and destroy Al Gore.
May 12, 2004: From Chris, of Crooked Timber:
“Following recommendations
from a number of CT readers, I watched Wim Wenders’s beautiful Der Himmel über Berlin (Wings of Desire) on DVD last night. Ausgezeichnet! (or,
maybe, splendid! ). No
doubt everyone but me has seen it already, but I don’t want to spoil it
for those who haven’t, so, by way of recommendation, I’ll just say
that some lines from Dennis Potter’s final interview came into my head
whilst watching it, and have stayed there. Potter, facing death from cancer,
spoke thusly:
“I can celebrate life.
Below my window there’s an apple tree in blossom. It’s white. And
looking at it — instead of saying, ‘Oh, that’s a nice
blossom’ — now, looking at it through the window, I see the whitest,
frothiest, blossomest blossom that there ever could be. The nowness of
everything is absolutely wondrous. If you see the present tense — boy, do
you see it. And boy, do you celebrate it.”
April
27, 2004: Cass R. Sunstein on Brown v.
Board of Education:
Was Brown, then, a failure?
Suppose that this is the real meaning of the Court’s decision: states may
not, by law, separate citizens from one another by race, simply because forcible
separation imposes a kind of stigma, or second-class citizenship, that offends
the most minimal understanding of human equality. It is one thing to attend
all-black schools. It is quite another to live under a legal system that
announces, on a daily basis, that some children are not fit to be educated with
others. Brown ruled that, under the Constitution, states may not humiliate a
class of people in that way. It may have taken a while, but this ruling, at
least, has stuck. And on the occasion of its fiftieth anniversary it justifies
a celebration.
But it does not justify
triumphalism. Brown v. Board, despite the unanimity of the decision, was the
product of a divided Supreme Court and a divided nation. Its current meaning is
up to us, not to previous generations or even to the Court that decided it.
Cautious as that Court’s justices were, Klarman notes a significant
generational fact: nearly all of its clerks were in favor of overturning
Plessy. The one evident exception was a clerk in
April
23, 2004: Scheherazade on billable
hours.
April
22, 2004: Stupid me: The Anonymous Lawyer states right there on top
that he’s fictional. I did take
his post as hyperbolic venting (no one could work at a place so entirely devoid
of human feeling, could he?), but I took him to be real too. Live and learn.
David
Kipen - in reviewing Lawrence Lessig’s new book, Free Culture - writes in the San Francisco
Chronicle that “[j]ust last week, Canadian courts declared
file-sharing as good as legal in that country. And this past weekend, a Harvard
study found that services such as Napster and Kazaa have little or nothing to
do with cratering CD sales figures, and may even be preventing those figures
from falling further. Rather than cannibalizing music profits, the Internet may
actually be propping them up.”
April
21, 2004: The Anonymous Lawyer’s April 19 entry is
one every attorney should read and consider.
April
20, 2004: McSweeney’s Daily Reasons to Dispatch Bush
are refreshingly factual and well sourced.
Here’s Day One:
The
Bush Administration's "Clear Skies Initiative," announced in 2002,
allows 125 percent more sulfur dioxide, 68 percent more nitrogen oxide, and 420
percent more mercury air pollution than existing laws.
(Source:
"The Bush Administrations's Air Pollution Plan Hurts Public Heath, Helps
Big Polluters, Worsens Global Warming," a report published by 14 nonprofit
organizations, including the American Lung Association, Physicians for Social
Responsibility, the Sierra Club, and the League of Conservation Voters,
February 2003)
The
report can be found online at www.nrdc.org/air/pollution/fclearsk.asp.
April
19, 2004: Michael J. Glennon writes in
the Wilson Quarterly on Marbury v. Madison, the
“most monumental case ever decided by any court in any country.”
Lawrence
Lessig’s new book, Free Culture, is
available for free for non-commercial purposes.
April
14, 2004: Okay, Deborah Skinner was not
brought up in a “Skinner Box,” but rather than being
swaddled by blankets in a crib she writes that she was placed for the first
two-and-a-half years of her life in a glass box in which she “luxuriated
semi-naked in warm, humidified air. The air was filtered but not germ-free, and
when the glass front was lowered into place, the noise from me and from my
parents and sister was dampened, not silenced.”
April
13, 2004: Jonathan Schell writes:
“Instead of saying, ‘On June 30, the Coalition will hand over
sovereignty to the Iraqi people,’ we should say, ‘On June 30, the
re-election campaign of George W. Bush will hand over the appearance of
responsibility for the rapidly deteriorating situation in Iraq to certain of
its local appointees.’”
April 8, 2004: The Observer has
obtained a remarkable email sent to the press secretaries of all
Republican congressmen advising them what to say when questioned on the
environment in the run-up to November's election. The advice: tell them
everything's rosy:
“It tells them how global
warming has not been proved, air quality is 'getting better', the world's
forests are 'spreading, not deadening', oil reserves are 'increasing, not
decreasing', and the 'world's water is cleaner and reaching more people'. “
How do you prepare a great
oral argument? Practice, practice, practice.
Dr.
Dave has just the facts. Among them are the following:
-Percentage
of Americans who will save less than $100 on their 2006 federal taxes as a
result of the 2003 tax cut: 88
-Average
amount these Americans will save: $4
April
7, 2004: The results of Normblog’s
poll asking for the best loved Bob Dylan songs.
April
3, 2004: Leon Wieseltier on the Pledge
case: “[W]hat kind of friendship for religion is it
that insists that the words "under God" have no religious
connotation? A political friendship, is the answer. And that is precisely the
kind of friendship that the Bush administration exhibited in its awful defense
of the theistic diction of the Pledge.”
April
1, 2004: Iraq Today is an English Iraqi newspaper started by an
Iraqi-American journalist named Hassan Fattah soon after
March 31, 2004: This administration and its political allies
seems addicted to the claim that actions they are compelled by circumstances to
take should not be held against their avowed principles. Now there’s the White House’s
insistence that the 9/11 Commission “must agree in writing
that [Condoleeza] Rice’s testimony before the Commission does not set any
precedent for future Commission requests, or requests in any other context, for
testimony by a National Security Advisor or any other White House
official.” Most notoriously the
five Supreme Court justices who decided Bush v. Gore
wrote that stare decisis wouldn't inhere in one and only one court
decision, Bush v. Gore, which happened to turn on an equal protection
analysis those five had never found convincing when applied to matters like
racial differences: "Our consideration is limited to the present
circumstances, for the problem of equal protection in election processes
generally presents many complexities.” (emphasis added.) The problem with this reasoning is that
wishing doesn’t make it so. To the
extent actions are supposed to constrain future practice (and it is inherent in
our judicial process that courts are bound by their earlier decisions unless
there are good reasons found in the subsequent cases not to), they will, even
if the actor doesn’t want them to.
March
30, 2004: From The Plain English Campaign,
the ten most irritating phrases:
(1) At the end of the day
(2) At this moment in time
(3) Like
(4) With all due respect
(5) To be honest
(6) Touch base
(7) I hear what you’re
saying
(8) Going forward
(9) Absolutely
(10) Blue Sky Thinking
In an interview from
NewScientist.com, architect Michael McDonough explains why he takes
nature as a model for human design:
“Why do you want to
redesign the world? “
“Consider this: all the
ants on the planet, taken together, have a biomass greater than that of humans.
Ants have been incredibly industrious for millions of years, yet their
productiveness nourishes plants, animals and soil. Human industry has been in
full swing for little more than a century, yet it has brought about a decline
in almost every ecosystem on the planet. Nature doesn't have a design problem.
People do. The endgame appears to have been to create a world in which we have
no real idea of the effects of the chemicals we're using, on us or the
environment, combined with the large-scale and inequitable use of natural
resources. But that was then - people thought they were doing the right thing.
Today is another day.”
March
29, 2004: Ellen Goodman gets right to
the nub of the Pledge of Allegience case.
Steven Weingberg in his examination of President Bush’s “New
Vision for Space Exploration” concludes that it doesn’t
make much sense to send people into space.
How military phrases – including the
latest, “hair on fire,” – infiltrate everyday speech.
March
26, 2004: The Smoking Gun has Donald Trump’s application for a trademark on
the phrase “You’re Fired”. The Legal Information
Institute has an overview of trademark law.
March
25, 2004: From The Guardian:
“A British theatre group is to hold an unprecedented casting call for its
next production. The experimental company requires a dead body to take a
leading role in its latest show. The consent of the donor of the body is being
sought beforehand and the production team aim to treat the subject of death
with absolute seriousness, challenging modern taboos about a condition that
comes to everybody at some point. Called Dead: You Will Be, the play
requires a dead body to 'lie in state' throughout the proceedings. The appeal
comes on the heels of other plans to bring dead bodies into the public arena.
The
I’m
reminded of Richard Clarke’s memories of September 11 as recounted during
his by now notorious 60
Minutes interview: