Wrong Again

Say it with me. Tyler Must Go:

I've just read most of the Bruce Sacerdote paper Tyler mentioned below, under the headline "against slavery reparations." I begin by noting that Sacerdote himself doesn't mention any implication his paper has for the reparations debate, as far as I can tell.

And I think he was right not to do so, and that Tyler's wrong that Sacerdote's findings have any relevance for the reparations debate.

Thank you, Jacob, for adding some intelligence back into the Volokh mix.

I know I sound like a broken and bitter record, so this is my last post on Cowen, but I really do hope he goes soon. Either that or I'm going to have to figure out how to view only select conspirators.

Banning the Internet

I just received an email from my dean, who I like very much. It is an explanation of the findings of a committee on teaching that was supposed to "lead the faculty in a collective rededication to excellence in the classroom." The most interesting part:

Third, the Committee reported widespread concern, among both students and faculty, with the misuse of computers in the classroom. Use of computers for purposes unrelated to the educational mission of the classroom distracts the students directly involved and those around them. Accordingly, the Committee recommended that use of computers in the classroom be limited to appropriate activities. Inappropriate activities generally would include sending or receiving e-mail, instant messaging, playing computer games, and accessing websites not specifically related to classroom discussion.

While I don't entirely disagree with some of their descriptions, what bothers me is that this senselessly promotes mediocrity by artificially limiting the market through monopoly. Instead of promoting better and more interesting teaching, they seek to eliminate their competitors.

In addition, banning the internet removes the competitive edge granted to those students who do pay close attention despite having the option to "misuse" their computers. Thus the market itself would reward both students and teachers who maximize their own potential, but wouldn't artificially bolster those who choose to be mediocre.

I'd expect more respect for the supremacy of the efficient market from a school renowned for its law and economics focus.

Volokh in Print

I just spent an hour giving Volokh's Academic Legal Writing a first read, and it was pretty helpful. I think it'd be a bigger resource if I was closer to beginning to write (I'm still in the primordial soup of picking a topic), and if I were writing a more prescriptive paper. My seminar this fall is on legal history, and I'll most likely turn that into my law review note. In addition to being a topic I find fascinating (my conlaw professor is a constitutional historian), it is also one of UVA's strongest fields, and I intend to take advantage of that. The upshot is that my paper will likely lean rather strongly toward the descriptive side, which Volokh doesn't spend quite as much time talking about.

Eating Cowen

Daniel Davies takes aim at Tyler Cowen and eats him alive:

I am indeed not tempted to enter into a discussion with someone who has such powerful defences against the danger of learning anything.

What's particularly striking is that the topic in quesiton is economics, the very thing Cowen is charged with teaching. I hope Volokh doesn't continue to host this drivel for too much longer.

UPDATE: Turns out Cowen was wrong about Epstein too. (Via Yglesias)

OK, I'm Impressed

I've got to admit, Dean's fundraising achievements are impressive to me. It looks like they've got a Dean table set up on Saturdays here in Charlottesville, I may have to go take a look.

At least he's got buzz, which is something I certainly can't say about any of the other candidates. And, as Yglesias points out, the DLC really hates him. That counts for something in my book.

Of course, I am a registered Virginia voter. I don't think it'll matter much what I say in the general election, though I'm less informed about VA's Democratic primary.

Which leads me to another question: how many states are truly competitive for the general election? In my politically-aware years, I've lived in Utah, Massachussetts, and Virginia, so I have the distorted view that my vote never ever matters in national elections. How many states are really up for grabs?

A Breathtaking Moment of Honesty

When the numbers are so clear that even NRO has to be honest (and sorta praise Clinton!), then something is seriously wrong:

After all, in inflation-adjusted terms, Clinton had overseen a total spending increase of only 3.5 percent at the same point in his administration. More importantly, after his first three years in office, non-defense discretionary spending actually went down by 0.7 percent. This is contrasted by Bush's three-year total spending increase of 15.6 percent and a 20.8 percent explosion in non-defense discretionary spending.

Wow, wow, and wow. I like this part in particular:

Government agencies that Republicans were calling to be abolished less than ten years ago, such as education and labor, have enjoyed jaw-dropping spending increases under Bush of 70 percent and 65 percent respectively.

Fiscal conservatism is truly dead. I guess that's why the Republican party offers me no temptation. If you're a social liberal and a fiscal conservative, then neither of the major parties offers much anymore... but at least the Dems get 1 out of 2.

(link via the Conspiracy)

Zinn in Concert

Pearl Jam, my favorite band, has very generously been releasing official bootlegs of all it's shows. While listening to the marathon July 11 show (in an effort to play every song in their repertoire, they had three shows in Boston, and played an extra pre-show acoustic set on the July 11), I came upon this shout out during "Down":

This is for Howard Zinn.

Uh huh. Turns out the lyrics include "You can't be neutral on a moving train," the title of one of Zinn's books. I've never read anything by Zinn, but have to admit quite a bit of skepticism. Anyone have anything to say about him? (I know you do!)

Exonerated Inmates

Kevin Drum has a post up about DNA testing and several commenters have brought up the Innocence Project.

In that vein, let me recommend a very troubling documentary from PBS' Frontline (which has been a major proponent of the Innocence Project) called Burden of Innocence, discussing just how helpless and damaged these men were once they were finally released from prison.

The part that really got me: they don't expunge the criminal records of these exonerated men. Instead they simply add "exonerated", and force the men to explain themselves to potential future employers:

It was a job search conducted, family members say, while bearing the burden of repeatedly having to explain his felony conviction and profess his innocence to skeptical employers. �I don�t believe that anyone really understands what the word �exonerated� means,� Miller says. �I go to a job and fill out the application, I explain to them that I was exonerated, I always get the [look], you know, like, �That word, what does that word mean?� I know that I am not going to be hired by anybody because of the rape I didn�t commit.�

I mean, of all the things we ought to be able to do for these guys (don't get me started on compensation), expunging their records so they can get a job ought to be an obvious and uncontroversial start, right?

Gay School Segregation?

I've not heard anything about this before, but right off the bat it sounds like a bad idea:

New York City is creating the nation's first public high school for gays, bisexuals and transgender students.

My initial reaction is to wonder how they will justify excluding heterosexual students if this really is a public school. It's unclear how the funding works:

The school is an expansion of a two-classroom public school program that began in 1984. A gay-rights youth advocacy group, the Hetrick-Martin Institute, has managed and financed the program since its inception.

My second reaction is to think this is a horrible example of self-segregation that does damage both to all involved. I mean, isn't this the anti-thesis of all the pro-diversity stuff we've heard about affirmative action? Those segregated will miss out on the benefits of normalcy (as well as the necessary socialization of being surrounded by heterosexuals). Those left in the normal schools will miss the important lessons of interacting with gays, instead suffering the traditional deprivation of thinking that no one they know is gay.

And New York City? Of all the places that ought to be able to have fully-integrated classrooms, a nice liberal urban place like New York should be at the top.

UPDATE: Check out Half the Sins of Mankind for more.

Class v. Weight

Here's a post that's probably going to come off as elitist or classist, but is intended as a legitimate question. Is there a correlation between income and obesity?

We keep hearing these dreadful statistics about how overweight Americans are, and I keep looking around and wondering where these people are. Over the past couple weeks I've made several trips to Wal-mart (which I assume has a pretty solidly lower and middle-class clientele), and have consciously noticed how overweight almost everyone seemed. The only connection I could make is that I've spent most of my life in very wealthy places (high school in Park City, Utah; college at Harvard; law school) and neither my peers nor my professors ever approached the average obesity level for our country. Now having spent the summer at the law school, I've also noticed that, for the most part, the only overweight people I see are secretaries or custodial staff.

Has anyone else noticed this? Have there been any studies? Am I totally wrong?

Strange Conspiracies

I normally really like The Volokh Conspiracy, but almost everything Tyler Cowen posts seems to be either nonsense or drivel (or nonsensical drivel). I mean, this is among the stupidest analogies I've ever heard:

Even if these Palestinian victims supported an unjust war against Israel, how much does that support lower their subsequent rights? Does it lower our rights if we supported an unjust war in Vietnam?

OK, I have no idea what that's supposed to mean, but maybe if I keep reading.... oh no, just more silliness:

If I were a Palestinian leader, and somehow immune from assassination, I would advocate giving all the land back to Israel, yes and I do mean all the land. And I would pledge that the Palestinians would give up their voting rights, forever, perhaps letting the Israelis rule them as the British once ruled Hong Kong.

Which is it? The Americans in Vietnam or the British in Hong Kong? And what the hell are you talking about!?!?

OK, I'm sorry... it's just hard for me to keep visiting one of my favorite sites and have to read such loads of crap.

It'll be a Close One

Looks like conservatives are getting a bit nervous about Bill Pryor's nomination. I just got this email:

The National Rifle Association rarely becomes involved in judicial nominations and only when the nominee has a clear record on the Second Amendment. Alabama Attorney General Bill Pryor's nomination for a judgeship on the U.S. Court of Appeals for the Eleventh Circuit is one of those cases. Because he has been a leading advocate of the Right To Keep And Bear Arms, the National Rifle Association - on behalf of its four million members - strongly supports Attorney General Pryor's confirmation, and we urge you to contact both of your U.S. Senators as soon as possible to express your strong support for his confirmation.

I think I'll pass.

End of Summer Reading List

Well I've got less than three weeks left before school stuff starts gearing up, so I've laid out a relatively ambitious but achievable end of summer reading list:

A Farewell to Arms - Ernest Hemingway
The Ambassadors - Henry James
A Portrait of the Artist as a Young Man - James Joyce
Fathers and Sons - Ivan Turgenev
Midnight's Children - Salman Rushdie

Well I'm going to get started. I'll be posting again on Sunday, hopefully having finally experienced the genius that is supposed to be Hemingway.

The Marriage Amendment

Matt Yglesias has a post on the marriage amendment ban, but I think he gets a little twisted about:

If I'm not mistaken, though, this amendment would actually prevent everyone, everywhere from getting married, not just gay people.

Several of his commenters had what I consider a proper reading of the text. The amendment would allow any state to pass its own statute providing for same-sex marriages, but would prevent any judicial recourse if the state refused to do so. It's simply an effort to remove the issues from the courtroom.

Unfortunately, it also seems to prevent ANY legal challenge to such laws, so it would allow seemingly total discretion to discriminate on any basis.

The other truly strange thing that seems pretty unprecedented is that the amendment proposes to dictate the extent to which state courts can interpret their own state constitutions.

For those who don't know, most state constitutions have many of the same liberty guarantees that the federal constitution has, and have often read them more broadly than the Supreme Court. For example, many state courts overturned their own sodomy laws both before and after Bowers, and many state courts have held the police to higher standards in criminal procedure.

This really is the death of federalism.

Innocent Until Charged

The Kobe Bryant arrest has me thinking about that ever popular refrain, "innocent until proven guilty." To be perfectly honest, I'm not sure I really believe in it.

Let me be clear. As a legal matter, it is certainly the correct standard. No one should be punished by our legal system until found guilty in an appropriate legal forum.

As a moral matter, I think this is probably also true. The force of our moral condemnation should be reserved until an appropriate level of evidence is presented to demonstrate guilt. Each person will likely set a different threshold, but it will at least require some evidence.

But as a factual matter, I must confess that I tend to believe that if you are charged with a crime, you are quite likely guilty of that crime. I will reserve my legal and moral judgment until I've seen more evidence, but I think that once someone is charged with a crime they are transferred to a holding pattern of sorts. They are no longer innocent like you or I are innocent. They are "awaiting judgment", and particularly when it seems that a prosecutor has devoted considerable thought to whether to bring charges, the existence of those charges inclines me to no longer assume that the person is innocent in the same way they were before charges were brought.

I know this isn't very structured or clear, but it's an intuition I'm having about my own reaction to the Kobe Bryant case. I wouldn't fire him or jail him without evidence, but I also wouldn't let my daughter (if I had one) go near him (assuming I would have before this incident). So that suggests something has changed about my feelings toward him, and I certainly no longer assume he's innocent in the way I did before I'd heard about this charge.

Isn't that true for anyone else? If your neighbor was charged with a sex crime, you'd no longer let my children play at his house. Yet you probably wouldn't advocate jailing him or firing him without a proper legal trial. Is that right?

So it seems there must be some gray area/holding pattern that we put people in once they are charged (or even just accused?) of crimes, a pretty big modification of "innocent until proven guilty."

UPDATE: I'm not really concerned with whether people agree with me on the Kobe Bryant case in particular, it's just what got me thinking about the issue. What I'm more interested in is the phenomenon generally. So the "neighbor charged with a sex crime" is probably a better test case. If you had children who normally played at a neighbor's home, would you continue to let them do so after he or she'd been charged with a sex crime (but not tried or convicted)? If not, why not?

Yellowcake With Frosting

I have to admit, I've not gotten particularly worked up over this whole uraniam/Niger issue. Perhaps it is because I'm already naturally skeptical every time we send troops anywhere, and even more skeptical about the veracity of all politicians. Maybe it's because I'm getting all my stress out by shooting textbooks and have no anxiety to focus anywhere. I don't know.

There are two things which do interest me:

1) The media seem to have really turned a corner in their critical approach to this administration. I think there's been a real lifting of what seemed, to me, to be a lot of deference to a modern administration.

2) It's interesting to me that so much can be made out of something which most people probably don't understand. I for one have no idea what it is that Saddam was supposed to have been seeking from Niger, what he would have done with it had he had it, or what he couldn't do without it. Yet the story seems to have really sprouted legs with the somewhat simplistic notion that it has something to do with nuclear weapons. I'm not saying that's not enough, it obviously is. But whenever a big news story breaks about a topic that I'm ignorant of, I instinctively seek to cure that ignorance. So could anyone give me, a non-science type, a straightforward explanation of what this "yellowcake" stuff is used for?

Another Reason to Be Nice to the Person Behind the Counter

My local gunshop had a used FN Police Shotgun for $250 (they run ~$375 new), and I brought it home this morning.

It is my first shotgun, and I plan on using it for skeet-shooting, home defense, and plinking. Can't wait to introduce it to some textbooks!

Be Nice to the Person Behind the Counter

I was at the bank this morning, and a gentleman at the next teller had to give a fingerprint verification for some reason. As soon as he was done, he asks the teller: "Now where am I going to wipe my hand?"

The teller hands him some dry tissues, but the gentleman is quite unsatisfied. "No, no, no, you're telling me you don't have any wet tissues? Well then I want to talk to your manager. Where is he? Oh, it's a she? Well I guess I just have a sexist attitude. This is a big customer service problem you have here, making customers get all this black crap on their thumbs and not giving them wet tissues to wipe it off with..." etc, etc, etc... then he starts talking about how he needs the cash because his other bank won't take a check, and blah blah blah.

And it's this 20-something teller, just looking at this guy with the most perfected blank stare.

It reminded me of the years I spend working in both the arts and athletic ticket offices at Harvard. I got yelled at because we reserved certain floor seats for handicapped persons in wheelchairs, we gave priority seating at Harvard/Yale to alumni, we limited Beanpot tickets to 4 per customer, we gave family benefits to unmarried gay couples but not unmarried straight couples, and so on. People would yell, bang on the window, hang up, huff away and come back fuming, and the like.

Why do people treat those behind the counter like this? You KNOW they aren't responsible for the policy you're upset with, and can't do anything about it. In addition, all the other customers have to listen to your whining, which does nothing but make you look like an asshole. So either politely ask for the manager (and then shut up and wait to speak to them) or save your bitching for something worthwhile.

Quite a Triumph

The pro-life movement must be so proud:

Warren Buffett has drawn criticism in the past for supporting pro-choice causes, but it never affected Berkshire Hathaway's charitable giving - that is, until Cindy Coughlon, a 34-year-old stay-at-home mom in Peoria, Ariz., came along. Now, as a result of her campaign against pro-choice donations, the most powerful man in business has terminated Berkshire's entire contribution program, which distributed nearly $200 million over the past two decades to institutions ranging from schools to groups on either side of the abortion debate. (emphasis added)

And the hits just keep on coming.

So That's How it Works

Here's some brilliant insight into the workings of our legal system:

Toobin: Evidence will determine Bryant's fate

Oh that's right! Evidence!

Punishing Speech in the Military

Ezra Klein thinks it is un-American to be punishing the soldier(s) who called for Rumsfeld's resignation on TV:

Is there ANYTHING more un-American, less Democratic, or more contradictory to the idea of freedom than that? When did we start adopting Saddam Hussein's methods for dealing with troops? It's fucking disgusting.

Well Ezra is a bright guy, but I think he's 100% wrong on this point (and shouldn't it be a little 'd' democratic?)

I sympathize with the soldiers, but I also think they were way out of line. They should know better and/or their NCO and officer leadership should be doing a better job keeping them from making these comments.

Despite Ezra's attempts to analogize this to Saddam's brutality, the truth is he would probably have these boys killed. Instead they'll get warnings or administrative punishment, likely based on Article 88 (10 U.S.C. 888):

�Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.�

Though facially inapplicable to enlisted personnel, it has been extended to them by DOD Directive 1344.10 (see pg. 12, E3.3.11: "Use contemptuous words against the officeholders described in U.S.C. 888")

So they broke a regulation that's been on the books since 1956. Punishing them might not be the best solution, but I don't think it's either disgusting or un-American.

Remember also that this is not a Republican/Bush administration thing. See here, here.


I'm sorry for the lack of blogging... I've been busy with several tasks of varying degrees of enjoyment and importance, none of which are particularly blog-worthy (anybody have a preference between a Mossberg 500 and a Remington 870?). Should be back to normal soon.

Aurelius and Constantine

I've previously discussed my distaste for sloppy counterfactuals, but here's a great counterfactual from Mill that is actually worth thinking about:

It is a bitter thought, how different a thing the Christianity of the world might have been, if the Christian faith had been adopted as the religion of the empire under the auspices of Marcus Aurelius instead of those of Constantine.

As a Sigma Chi I probably ought not speak badly of Constantine, but this really does raise some interesting historical questions of which I must confess the greatest ignorance. What was the effect of Constantine being the great patron of Christianity? Is the militancy and intolerance of the Crusades/Inquisition/etc at all traceable to this accident of history? Would Aurelius really have done better?

More From Glenn

I wonder how many times Instapundit can say "Here's yet another issue for the Democrats..." without coming to the conclusion that he's dissatisfied with this administration. It's not just an issue for the Democrats, Glenn, it's an issue for America.

Depressing Rape Laws

For those who think I'm just being a whiny liberal when I complain about the depressing rape laws, here's exhibit A, courtesy of the great state of South Carolina:

� 16-3-658. Criminal sexual conduct: where victim is spouse.

A person cannot be guilty of criminal sexual conduct under Sections 16-3-651 through 16-3-659.1 if the victim is the legal spouse unless the couple is living apart and the offending spouse's conduct constitutes criminal sexual conduct in the first degree or second degree as defined by Sections 16-3-652 and 16-3-653.

The offending spouse's conduct must be reported to appropriate law enforcement authorities within thirty days in order for a person to be prosecuted for these offenses.

South Carolina does have a separate law for cases of sexual battery against a spouse, but it requires "use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature" and, again, must be reported within 30 days.

What year is it?

Duty to Help

It seems pretty clear that Mill envisioned a sphere of liberty larger than that provided in our country right now. That's why it seemed so strange to see this claim:

There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as to... perform certain acts of individual beneficence, such as saving a fellow-creature's life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man's duty to do, he may rightfully be made responsible to society for not doing.

First I must admit I'm not sure whether he is arguing that this responsibility should be enforceable by law, or "where legal penalties are not safely applicable, by general disapprobation." He doesn't make it clear.

If he does intend to have it legally enforceable, however, it would seem to be an interesting area where Mill is actually calling for more restrictions on liberty than our laws currently provide. Isn't "you don't have to save a drowning baby" one of the classic points illustrating our hesitance to enforce a so-called duty to help?

I've always thought so, and Seinfeld finale aside, have rarely run across so-called Good Samaritan laws (not the ones protecting those who help, e.g. roadside motorists, but those actually enforcing a duty to help). Naturally enough, today I ran into one. While researching rape laws (a terrible project that has been pretty depressing), I came across this Rhode Island law:

11-37-3.1 Duty to report sexual assault.

Any person, other than the victim, who knows or has reason to know that a first degree sexual assault or attempted first degree sexual assault is taking place in his or her presence shall immediately notify the state police or the police department of the city or town in which the assault or attempted assault is taking place of the crime.

Very interesting... and here's the penalty:

11-37-3.3 Failure to report -- Penalty.

Any person who knowingly fails to report a sexual assault or attempted sexual assault as required under � 11-37-3.1 shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not more than one year, or fined not more than five hundred dollars ($500), or both.

I don't as yet have an opinion on the wisdom or justice of such laws, though my policy preferences certainly support anything we can do to reduce the difficulty of preventing/prosecuting sex crimes. But as a question of liberty, I'm befuddled.

Mill's other examples of positive duties are "to give evidence in a court of justice" and "to bear his fair share in the common defence," and I'm fully on board with the first, and mostly on board with the second. So maybe Mill is on to something, and the hesitancy we have about enforcing a duty to help is ill-founded.

Rehnquist on AA

Here's a good story passed on by a classmate, suggesting that despite all evidence to the contrary, Rehnquist apparently has a sense of humor:

[Virginia Law] Dean Jeffries was at the Annual U.Va. Law Washington Alumni Lunch yesterday, and he stopped to talk to us for a few minutes. Apparently, the Law School had not one, but two candidates that Rehnquist was considering as finalists for his clerk position next year. So, Jeffries put in a good word to the Chief on their behalf while he was up here. One of the two was eventually selected, but Dean Jeffries said that he kept insisting to Rehnquist that they both were equally impressive candidates and he might consider taking both of them. Rehnquist responded with a grin and said, "Oh, I think they are both very qualified, but I should only take one from Virginia. You know, in the interest of diversity."

Incidentally, I think he took one and the other is going to clerk with Justice Stevens (if he survives Robertson's prayer offensive).


What a schmuck:

Religious broadcaster Pat Robertson urged his nationwide audience Monday to pray for God to remove three justices from the Supreme Court so they could be replaced by conservatives.

"We ask for miracles in regard to the Supreme Court," Robertson said on the Christian Broadcasting Network's "The 700 Club."

Robertson has launched a 21-day "prayer offensive" directed at the Supreme Court in the wake of its 6-3 June vote that decriminalized sodomy. Robertson said in a letter on the CBN Web site that the ruling "has opened the door to homosexual marriage, bigamy, legalized prostitution and even incest."

The same letter targets three justices in particular: "One justice is 83-years-old, another has cancer and another has a heart condition. Would it not be possible for God to put it in the minds of these three judges that the time has come to retire?"


So I'm two pages into On Liberty, and already Mill has wowed me. Read this and tell me it doesn't evoke images of a certain attorney general:

To prevent the weaker members of the community from being preyed upon by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down. But as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defence against his beak and claws. The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty.

I hope the next ~90 pages are just as good.

Around the Blogroll

I thought I'd take a stroll around the blogroll and see what's cooking.

Eugene Volokh has an extended entry arguing in favor of legalizing gay marriage (though not via the courts). I recently read an article on the topic by John Finnis and a response by Stephen Macedo, and found the whole debate very interesting AND completely alien to what most people seem to base their opinions on.

Alex Knapp has begun a series on why he won't be voting to re-elect Bush.

In a brief respite from the Howard Dean cheerleading (just kidding guys!), Joe Rospars at Not Geniuses is reminding us how liberal interventionism is actually supposed to work. (He has also crafted a nifty escape route for the would-be-sinking-if-he-ever-was-afloat Kucinich).

Tacitus ran across a rather amusing photo of Paris' Bastille Day celebrations. A cheap shot it is, but harmless and worth a laugh.

Winds of Change remains the best one-stop-shop for the War on Terrorism. It's hard to keep up with that stuff, and their guest "Winds of War" bloggers have been doing terrific stuff.

Kieran Healy over at the new (and splendid) Crooked Timber voices a response to the so-called "Bright" movement, and I couldn't agree more.

PG also has some excellent criticisms of the "Bright" manifesto over at 1/2 Sins. She also needs help narrowing down her potential law schools, so head over and spill the dirt on the law schools you hate.

Mark Kleiman has some interesting first-hand insight on an old controversy surrounding first generation database software in the Department of Justice, and how politics and good old boys can occasionally be defeated by the little voices of reason.

I don't see any individual post permalinks, but A Layman's Opinion continues to be one of the best sources for news and analysis of East Asia.

I love my blogroll, but I'm also looking for some new reads. If you have any suggestions, please leave them in the comments.

Hockey in Hell

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The Moviegoer

I finished watching the Kurosawa documentary yesterday, and it was quite good. He lived an interesting life, particularly in his later years when box-office failures and shifting Japanese culture left him dependent on international benefactors (in both the Soviet Union and America) to finance his films (and the resulting bitterness is evident in his later films). It also made clear just how direct Kurosawa's influence was on American films (Westerns in particular), with interviews of James Coburn (The Magnificent Seven) and Clint Eastwood (A Fistful of Dollars).

I don't often see films in the theatre, but my girlfriend and I went yesterday and saw The Whale Rider, a film set among the Maori people, indigenous to New Zealand. It was a stunning film, with one of the best performances by a young actress that I've ever seen. Highly recommended.

Moral Authority

Another point in Mill's "The Spirit of the Age" that piqued my interest was his discussion about the difference between "natural" and "transitional" states, the first being defined as a state where the most virtuous and wise are in power. He distinguishes between legal/political power and moral authority, and points to medieval Europe as an example of a natural state in both realms. Though we might dislike their beliefs and actions, Mill suggests it seems clear that the noble classes and the clergy were the most educated and skilled of that time. Thus even though we might not consider them good rulers, they were the most qualified available.

Mill was writing in large part as an advocate for what became the Reform Act of 1832, partially extending the vote to the middle classes. Mill attacked the aristocracy as having decayed in their leisure, failing to maintain their skills at governance and neglecting to take advantage of their free time and money to further their leadership capacity. Thus it was no longer true that those in power were the most qualified.

This is all well and good, but a rather obvious question kept creeping into my mind: "What is the spirit of this age?"

Do we retain the capacity to choose the most wise among us, as Mill was so convinced liberal democracy would allow? He refers to the United States multiple times as a paragon of sagacious leadership, but I wonder if a) that was ever true, and b) if so, whether it remains true today.

Certainly there are some very skilled members of our governments, and most are well educated. But I do wonder whether the growing influence of campaign finance and increasing income inequality might be setting up a system in which those chosen to rule has more to do with heredity than wisdom, exactly the formula for the decay which Mill is deriding. I'm not making an underhanded attack at our current President, but I'm concerned with our system as a whole and he certainly is a product of it.

Of even more interest to me than questions of political power is determing the current source of moral authority. One of the characteristics of Mill's "transitional" state is that there are no settled and "received" wisdoms, because there is no accepted moral authority. The clearest example he gives of a "natural" state of moral authority was the medieval, pre-Reformation Catholic church, whose priests were received by all as the intermediaries to God, and who genuinely were the most skilled of their age, likely even being the only ones who could read and thus have access to any collected wisdom.

Regardless of the veracity of Mill's view of the church, it did leave me pondering what our source of moral authority is. It certainly is not 'the' church, as America, religious and Christian as it may be, is not beholden to a particular church. We don't have an aristocracy, and the rise of public education has done much to alleviate the stark contrasts that would result from education being a privilege of the upper class. So the upper class doesn't provide our moral compass. Our politicians? I don't think so. Is it our legal system?

In the end I suppose I'm wondering what people think the great moral influences of our day are, and if there is no stable and "received" perspective, whether that means we are currently in a "transitional" state... if we are in such a state, then some of the battles being fought in our country would seem to take on a greater importance, as they may determine what "natural" state we are headed for.

History's Hindsight

I'm almost always on board with Kevin Drum, but I think he's got a pretty distorted view of historical retrospection to believe this. Speaking about the military tribunals, he says:

Our children are going to look back on this the same way we look back on Japanese internment camps and McCarthy-era loyalty oaths.

There are many ways to distinguish this from those, the most important of which is that it is almost certain that all of these people will in fact be convicted, and thus go down in our history as terrorists and criminals. As such, "our children" will likely be a good deal less concerned with what rights they had obtained or lacked. I think the same would have been true if some large percentage of the interned Japanese-Americans had turned out to actually be traitors, or if McCarthy had been right about a good deal more of his outlandish claims.

In reality, what bothers us about those two events in particular is that so many innocent people were persecuted by broad strokes of injustice. That might also be true of the larger 'war on terrorism', but it doesn't seem particularly true of the military tribunals. We might not like the way they are run, but so far I've seen nothing to indicate that they are going to being used as a broad sweep against innocent people. I don't know exactly what all of those people at Guantanamo Bay did, but I'm pretty sure most of them are not innocent in the way the Japanese-Americans or the victims of McCarthyism were. I've not heard a lot of serious agitation that we have incarcerated innocent people, just that we're not giving them their due rights.

That does not mean I think the military tribunals are just or wise, but rather that CalPundit's analogy seems rather short-sighted.

The Fittest Men

Yesterday I read Mill's "The Spirit of the Age" essays, and stumbled upon this jewel of a passage:

In the United States, where those who are called to power, are so by the general voice of the whole people, experience equally testifies to the admirable good sense with which the highest offices have been bestowed. At every election of a President, without exception, the people's choice has fallen on the person whom, as all impartial observers must admit, every circumstance that the people knew, pointed out as the fittest; nor is it possible to name one person pre-eminently qualified for the office, who has not, if he was a candidate, obtained it. In the only two cases in which subsequent experience did not confirm the people's judgment, they corrected the error on the very first lawful opportunity.

What a romantic image of America! For the curious, those who proved "unfit" were John Adams and John Quincy Adams. Among the most interestings facts about that pair, aside from their kinship, is that they both lost their re-election bids to the man they defeated in the first place (Thomas Jefferson and Andrew Jackson, respectively). Someone should have told Al Gore.


Via Eric Muller I found this funny little program called Googlism, which returns some phrases concerning whatever name you enter. My results:

unlearned hand is thy name
unlearned hand is looking for guest bloggers � particularly blog readers who don't currently blog and might like to test the
unlearned hand is feeling pessimistic
unlearned hand is looking for guest bloggers who'd like to try a stint posting on his blog
unlearned hand is dead on in his judgment of o'conner's grutter opinion
unlearned hand is basically right about the
unlearned hand is adding personnel
unlearned hand is a 1l at uva law school
unlearned hand is looking for guest bloggers and eventually is looking to become a
unlearned hand is looking for
unlearned hand is collecting bloggers' opinions for a series called "where do we go from here?" mr
unlearned hand is going to be my speechwriter
unlearned hand is right

Yes indeed.

What Goes Around...

Comes around:

Harvard has revoked its admission of Blair Hornstine, the prospective member of the Class of 2007 who made national headlines when she sued her school system to ensure she would be her high school�s sole valedictorian.

Following a widely-publicized report that Hornstine had plagiarized material in articles she wrote for her local paper, the Harvard admissions office has rescinded her offer to attend Harvard in the fall, according to a source involved with the decision.

Do I really wish this ill on Blair? No, I don't think I do. Certainly it'd be better to find a more direct way to teach her father a lesson, without further damaging her. But still, it is nice to see some consequences come of that family's outrageous behavior. I don't know if anyone will learn anything from the experience, but maybe some good will come of it.

The Job Hunt

There are 129 law firms from the District of Columbia coming to do on-grounds interview this fall, and I'll be damned if I can really tell much difference. I know I'm not qualified to do IP law and uninterested in tax, so that helps me knock off the 10-20 firms that seem to focus heavily or exclusively in those areas.

Beyond that, I'm a little lost. I think I want to do litigation, and white collar criminal defense certainly sounds appealing.

Any advice?

Remnants and Loopholes

I'm doing research on state homicide statutes, and ran across a couple peculiar provocation-related clauses that I thought I'd pass on. I think the first is likely meant to overturn old common law provocation categories, and the latter is just a safeguard against a particularly strange use of the provocation defense.

Maryland (2-207. Manslaughter):

(b)The discovery of one's spouse engaged in sexual intercourse with another does not constitute legally adequate provocation for the purpose of mitigating a killing from the crime of murder to voluntary manslaughter even though the killing was provoked by that discovery.

Minnesota (609.20. Manslaughter):

(1) intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under the circumstances, provided that the crying of a child does not constitute provocation. (emphasis added)

UPDATE: Here's another, from New Hampshire (630:1-a. First Degree Murder):

I. A person is guilty of murder in the first degree if he:
(b)Knowingly causes the death of:
(4)The president or president-elect or vice-president or vice-president-elect of the United States, the governor or governor-elect of New Hampshire or any state or any member or member-elect of the congress of the United States, or any candidate for such office after such candidate has been nominated at his party's primary, when such killing is motivated by knowledge of the foregoing capacity of the victim. (emphasis added)

Fortunately, if you didn't know or didn't care that it was the President, it's only 2nd-degree murder.

Happy Days Are Here Again

Via Talkleft I ran across this story about an Alaska judge dismissing a marijuana possession conviction on state constitutional grounds, citing a 1975 Alaska Supreme Court precedent. Well I'd never heard of this case, Ravin v. State (537 P.2d 494), but it is really something:

Thus, we conclude that citizens of the State of Alaska have a basic right to privacy in their homes under Alaska's constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

However, given the relative insignificance of marijuana consumption as a health problem in our society at present, we do not believe that the potential harm generated by drivers under the influence of marijuana, standing alone, creates a close and substantial relationship between the public welfare and control of ingestion of marijuana or possession of it in the home for personal use. Thus we conclude that no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown.

Whoa! I'd never have believed it if I hadn't read it. A 1990 state initiative tried to make all marijuana possession illegal, but the judge in this new case apparently is holding that the initiative could not overrule a constitutional right (which seems quite right, depending on what the proper constitutional amendment process actually is in Alaska).

Fantasy Draft Results

Alright, the first four rounds are over and I got my top 4 choices!

American Legal History (seminar)

Federal Courts
Constitutional History: from Plessy to Brown



I just finished Solaris and I'm not ashamed to admit that a good chunk of it flew right over my head. It's one thing when science fiction discusses real science that I don't comprehend. It's another when it discusses fictional science that I don't comprehend.

Nonetheless, that's not really what the book is about, and I'm quite impressed by the depth of the book. From what I gather, Lem is not alone among Eastern European science fiction writers of that time in being more dedicated to probing questions of humanity and philosophy than his Western counterparts.

The Apology

I read Plato's Euthyphro and Apology today. The first I had previously skimmed for a class titled "If There is No God, All is Permitted": Theism and Moral Reasoning (syllabus here). The course description gives some idea of the context in which I read it:

Belief in God and denial of God's existence have each figured prominently in Western moral discourse. Arguments have been advanced that: autonomous human reasoning is incapable of arriving at moral truths without a supreme principle to ground the system (which is sometimes invested with "personality" and called God); that autonomous human reasoning can have no impact on moral behavior due to human failure that only God can "correct"; that autonomous moral reasoning is impossible, and morality can only be understood as the submission to the will of a superior moral being; that a concept of God is necessary to direct and regulate moral reasoning, but the actual confessional versions of theism are metaphysically implausible or impossible; that autonomous human moral reasoning is impossible with God, and thus only a-theism can lead to moral conclusions. This course will engage all these different themes.

Well it was a pretty heady class and regrettably I didn't do much of the reading or go to many of the classes (the same can be said for a number of my classes). Nonetheless I did read Euthyphro and remembered it as a strong indictment of those who would ground their visions of the good squarely with the will of God. Re-reading it only buttressed that idea.

The Apology was completely new to me, but really serves as a stellar anthem for the noble philosopher, as well as providing a solid explanation for the method of cross-examination that still bears Socrates' name.

I'm particularly struck by how straightforward these early works of Plato are (admittedly excluding the act/state gymnastics in Euthyphro). I've become so accustomed to expecting philosophy to be dense and dry that the conversational tone of the texts has been a delight. I'll be little surprised if this proves a temporary phenomenon as I move into Plato's later works, but for now it is a breath of fresh air.

And the Crowd Goes Wild

The prodigal laptop has made its return... normal blogging will resume tomorrow!

Academic Ann

Jim Dedman has got the goods on Ann Coulter's 1987 law review article.

Toil and Treasure

I finished today two books that I really enjoyed: Tolkien's The Silmarillion and Faulkner's As I Lay Dying. Now the two don't have much in common, but they are certainly both books that require some patience and perseverance. Tolkien's work presents a world so enduring and expansive that only the most gifted of readers could possibly piece it all together themselves. I was fortunate enough to have copies of The Atlas of Middle-Earth and The Complete Guide to Middle-Earth at my side, and they were vital (the atlas in particular should be a required purchase for its brilliant maps). I'm sure it would not be for everybody, but I happen to be a huge (though lately come) fan of The Lord of the Rings and epic mythology. Thus The Silmarillion was, to me, heaven-sent. The creation myth is beautiful, many of the stories (particularly "Of Beren and Luthien") are splendid in and of themselves, and of course the history provides tremendous context for the more famous books. And that really is one of the blessings of Tolkien. There are many books that will create a fictional world that is heartbreaking to leave. I'll often close a book and begin to miss the characters, miss their world. In some ways, that is part of the beauty of literature; our imaginations get to fill in the rest. What's amazing about Tolkien is that his world is so rich and imaginative, we can have both. Even after reading The Silmarillion (and I imagine even after reading all the other histories and lost tales of Middle-Earth), there is so much left unknown that our imaginations simply have more material with which to weave dreams.

Faulkner presents an entirely different problem; there is almost too little information given, or at least too little objective information. It is a book without a narrator, shifting each chapter to a new voice, all in stream of consciousness, some nearly non-sensical. Fortunately, unlike The Sound and the Fury, the reader is actually told whose consciousness is speaking in each chapter, but the challenge remains immense.

The Sound and the Fury was my first experience with stream of consciousness and with Faulkner, and I made it about 20 pages in before swearing an oath to hate both forever. My distate for stream of consciousness gained further ground upon reading Toni Morrison's Beloved, where it is used very selectively and seemed particularly non-sensical (note: my entire experience with Morrison is tainted by the teacher whose assigned her books; I plan to go back and give Morrison a fresh start).

Fortunately my distate for Faulkner lessened with time, and I ran across some recommendations on which of his books to read first. Thus I picked up The Reivers and The Unvanquished and loved them both. It's been a few years since then, and I thought I should give one of his more difficult novels a try. It was well worth it, and I now appreciate stream of consciousness, at least as used here. It is so integral to the book's themes of subjectivity, perceptions, and the disconnect between thoughts, words, and actions. I can now understand and appreciate the importance of that device, something I just couldn't do before.


I've just finished The Sun Also Rises, and I really don't know what to make of it. Authors are, like all of us, products of their times. As such, it's hard to know what to make of the book's anti-semitism, and hard to know how much it matters.

Beyond that, it seemed to be mostly a book about men and weakness...

Job Placement

I'm not particularly swayed by educational rankings of any kind, but when it's MY school that does well I've just got to pass them along. Brian Leiter has a new list of the schools with the best "national" placement at elite firms around the country:

1. Harvard
2. Chicago
3. Yale
4. Virginia
5. Michigan
6. Stanford

Yes indeed. Though in my case, you might even say UVA has an international reach, as I could find myself working in such exotic locations as Iraq, South Korea, Bosnia, and coming soon, Liberia.

The Slowdown

I was speaking with Micah Schwartzman earlier today, and he mentioned his surprise at how the blogosphere seems to have slowed down with the beginning of summer, a somewhat counter-intuitive phenomenon.

Aside from my laptop mishap, my first response was that during the school year (and many/most of the bloggers Micah and I read are students or professors), our blogs are just about the only diversion we have time for. I can always find 5-10 minutes several times during the day for posts, and it serves as a great escape from my work. In contrast, during the summer I have sufficient free time for a much broader array of relaxing activities, particularly reading and viewing films. As such, though it might seem that the increase of free time would lead to an increase in blogging, it has actually lead to a decreased need to blog, since I've got other outlets.

Casebook Help

We've decided to use Lawrence as our main case in the "what do we punish" portion of the introduction. Now I'm looking for a persuasive argument AGAINST the majority, or rather against the idea that "morality is not enough." It should be in the vein of criminalization, not due process or equal protection conlaw stuff. It need not be a response to the case in particular, but something in the last 5-10 years would be best. I've found some good stuff in some of the Lawrence briefs, and the Louisiana Supreme Court decision upholding their sodomy law in 2000 (State v. Smith).

If anyone remembers reading something along those lines, let me know. Thanks!