Thursday, July 21, 2005

The price of a red herring

President Bush's nomination of Judge John Roberts to the Supreme Court came as a surprise to court watchers. First President Bush was going to nominate Alberto Gonzales, then it was going to be a woman, and the morning before the announcement, everyone thought it was going to be Judge Edith Clement.

What has really amazed me about the process is how completely by surprise this summer's developments have caught everyone. I don't think anyone expected Justice O'Connor to retire. Everyone thought Justice Rehnquist would retire, and the speculation had become a death watch before he squelched the rumors. And few expected President Bush to name Justice Roberts. I know I didn't. I thought he would name a woman or a minority or else go for a hardcore conservative like Judge Michael Luttig.

To give an example how completely unpredictable this process has been, there is a website called TradeSports for betting on events of every kind, including who President Bush would appoint to the Court. The idea is that the betting site will reveal the "truth" because people "in the know" will bet up the price of the person to be appointed. The site, as I understand it, returned $100 if your choice was actually nominated. People were so sure it was going to be Clement that her "stock" traded in the $70 range the morning of the Roberts announcement. The highest I saw it trade at was $77. Another woman judge, Edith Jones, traded in the $20 range. I don't recall what Roberts traded at earlier that day, but it must not have been more than $1 or $2 a share, if not for pennies a share. (Now that the betting over who President Bush would nominate is over, there is betting over whether Roberts will be confirmed. Last I checked, his confirmation was trading at $89 a share.)

Why did Clement's stock go so high the morning of the Roberts announcement? The first that I heard it was "going to be her" was that morning. The previous day, who it would be had been anyone's guess. Because people were so sure it was Clement and for so long (the whole morning and the whole afternoon), I'm convinced that the Bush Administration put out a false leak to detract from Roberts while President Bush prepared to make the announcement that evening. It worked. The false rumor bought time for the administration to allow Roberts to make a good first impression and President Bush got the last laugh over the media, a day after personally thanking a reporter for telling him where in the nomination process President Bush was at the time.

I can only suppose that Judge Clement, being a good sport, agreed to go along with the ruse. At least she revealed to us the price of a red herring: $77/pound.

Saturday, July 09, 2005

Chief Justice Rehnquist

I really thought Chief Justice Rehnquist was going to resign yesterday. But then columnist Bob Novak went on CNN saying he had one good source that Rehnquist was going to submit his resignation letter when President Bush returned from Europe. Matt Drudge amplified Novak's speculation and all Washington was just waiting for the final word.

This has to be kind of demeaning for Rehnquist. Not to be too crude, but I mean, when you are going to croak, you want to do so on your own terms, not when everyone is waiting for you to drop dead. I think Rehnquist wants to surprise, just to show that he will go out on his own terms, when he is good and ready.

Witness his words to a reporter on Friday when the reporter asked him if he really was going to resign: "That's for me to know, and for you to find out."

Thursday, July 07, 2005

Supreme Court vacancy

Put on your specs nodded. I blame the hours at the unspecified law firm. Consequently I can’t promise that I will post regularly until school starts again. The best way to know when I post is to download the RSS feed. Or you can send me an e-mail asking me to let you know when I post.

But for now, I must say something about the new Supreme Court vacancy. If Justice O’Connor was going to step down, I would have preferred she retired next year instead. The ensuing confirmation battle would have occurred right before the midterm elections and Republicans would have been under greater pressure not to appoint a hardcore conservative. Democrats would have scored political points with the argument that Roe v. Wade was in danger with only five votes. This worked in the past: they won the elections following a late 1980s case that chipped away at Roe and several senators suffered severe repercussions for voting to confirm Justice Thomas.

But now isn’t such a terrible time for Democrats for her to retire either. Although midterms are 16 months away instead of 4 months away, I think that if the nominee to replace her is controversial enough, it could cost the Republicans. But if they appoint someone too liberal, Christian conservatives could stay home during midterms. My mother asked if Gonzales was really Spanish for Souter. Just imagine if Chief Justice Rehnquist stepped down next summer. Then Republicans would really be caught between a rock and a hard place.

I think President Bush and Senate Republicans are all too aware of the dilemma they face. If they could get Chief Justice Rehnquist to step down now, they would have a much easier time of it. They could split the ticket, so to speak, in appointing a moderate conservative and a staunch conservative to try to make everyone happy and emerge unscathed.

In case there was any doubt, President Bush’s Social Security plan is officially dead now. No one is paying attention anymore.

Saturday, June 18, 2005

Political soap

Having followed politics for some years now, I thought I had seen everything. Until I saw a CNN report that a bar of soap purportedly made from Italian Prime Minister Silvio Berlusconi's fat, removed during liposuction, sold for $18,000 at an auction.

Last year, Cheney uttered obscenities at a Democratic senator on the Senate floor. Perhaps clean out his mouth with Bubba's fat?

Tuesday, June 14, 2005

Lost in outer space

You may recall the infamous photo of John Kerry in a space suit that ran during the presidential campaign last year:

About two weeks ago, Tom DeLay visited NASA and only partly avoided the mistake Senator Kerry made:

A better instinct for photo-ops may be one reason why Republicans are in power and Democrats are not (Dukakis in a tank, anyone?). Then again, with DeLay under a cloud of scandal, it may be best to avoid space walks altogether. He and Kerry would have been better off if they kept themselves grounded in political reality.

Friday, June 03, 2005

Genetic studies

The New York Times today reported the results of two very different genetic studies, one fairly straightforward and the other totally shocking if true.

First, the straightforward one. Researchers isolated the gene that determines the sexual orientation of fruit flies. Simply by turning on or off a single gene, the researchers could make a female fruit fly perform an elaborate mating dance before another female fruit fly. This is a neat experiment, all the more so because researchers had long known the genes responsible for mating but no one had ever thought to try this particular experiment.

My only quibble is with what one researcher said when interviewed for the article:

Hopefully this will take the discussion about sexual preferences out of the realm of morality and put it in the realm of science.

The problem is that the moral debate about homosexuality was never really about what causes homosexuality. The conservative premise, as I understand it, is that there is a distinction between having homosexual tendencies and engaging in homosexual sodomy, with the former perhaps beyond our control, but the latter very much so. For these conservatives, it is like saying that some people have a greater tendency than others to think murderous thoughts, but that does not make murder any less wrong. Whatever the science yields on the origins of homosexuality, it will do nothing to settle the cultural debate about gay marriage.

The second study is just plain stunning. Some researchers published a paper suggesting that certain genetic diseases long associated with Ashkenazi Jews, such as Tay-Sachs, exist as a byproduct of genes that make Jews smarter on average. The theory goes that when Jews were persecuted and could only work in commercial trades requiring some level of intelligence, there was intense evolutionary pressure to become smarter, and Tay-Sachs was an unfortunate byproduct of this rushed evolutionary product. Sort of how sickle cell anemia is a byproduct of evolutionary resistance to malaria.

I’m at a loss for words as to what to say about this, if it is in fact true, not just because it is utterly politically incorrect but also because of its implications about the interplay between genetics and culture and even between evolution and bigotry. There are so many politically incorrect ways that one could go with this, and not just with the Jewish people. Does ths study imply that black people dominate in athletic and not academic achievement because they were once slaves working the fields? This is all just so troubling because it seems to bring back social darwinism with a vengeance. The study also just seems wrong because I always thought it was about cultural values. Jewish people seem to have that Protestant work ethic that places great value on education and working hard to get ahead in life, and I had always assumed that these values were the reason why Jewish people have always seemed to succeed wherever they go.

Monday, May 30, 2005

Canonizing John Paul

Shortly after Pope John Paul II passed away, I blogged about the talk of canonizing him. I wrote that I thought it was premature. Here is part of what I wrote at the time:
Whatever the merits of John Paul as a saint, I do not believe that the process should be accelerated for him. I like the idea of a five-year waiting period because there can be an upsurge of emotions when a person dies and there is no doubt that this grief can color the decisionmaking process, perhaps causing people to exaggerate how wonderful a person was or to go about the canonization process in semi-irrational fashion. This is not to say that John Paul was not a wonderful person or that he should not receive consideration; only that the canonization process should follow thorough investigation.
The Boston Globe reports that the beatification process is officially underway two weeks after Pope Benedict XVI waived the normal five year waiting period. I still think it is too much too early, that we are stlil affected by the immediate afterglow of affection for John Paul after he passed away to really make the decision in considered fashion.

Thursday, May 26, 2005

Nuclear Bolt?

I'm subbing for POYS today.

Well, just when we thought the week couldn't get any worse for Senate Majority Leader Bill Frist, the Democrats were right back at it today filibustering President Bush's nominee for UN ambassador, John Bolton. Rumor had it earlier in the day that the Democratic Leader, Harry Reid, had promised Frist the necessary votes to cut off debate, a claim that Reid denies. Either way, whatever feelings of good will there were after Monday's compromise to head off the nuclear option are clearly gone. Frist and his whip, Mitch McConnell, might want to check their head counts in the future before holding embarrassing votes like this one.

(Reid insists that the Democrats aren't actually filibustering Bolton, just trying to delay a vote until they get more documents from the State Department. Does this line remind anyone of what they said about Miguel Estrada?)

The Democrats have already promised to filibuster two of Bush's remaining judicial nominees - Myers and Saad - who weren't covered by Monday's agreement. Suffice it to say that if they persist with the Bolton and judicial filibusters, the nuclear option will be back faster than it took to elect Ratzinger as pope.

One odd twist in the whole affair is the irascible Senator Voinovich of Ohio. After nearly breaking down in tears on the Senate floor yesterday in a speech opposing Bolton, Voinovoich voted for cloture today. While he argues that Bush is entitled to an up-or-down-vote on his nominee, one would think that if Voinovich felt so strongly about Bolton he would vote against cloture.

In any case, Frist has been badly damaged by this. Is it possible that a Lott comeback is in the making?

Wednesday, May 25, 2005

Confirming Judge Owen

The filibuster is safe for now, after moderate Republicans and Democrats reached a last-minute deal that allowed some contested judicial nominees to go through while supposedly reserving the filibuster and nuclear option for extraordinary circumstances. Conservative groups are furious with Republicans for compromising (and liberal groups with Democrats for allowing the contested nominees through). Because a good compromise leaves no one happy, don’t expect this one to last long.

I never thought that the judicial nominees the Democrats were blocking were really that objectionable. Sure the nominees are conservative, but what else do you expect from President Bush? I’m far more concerned about the swamping of the judiciary with the more than 200 conservative judges that President Bush has appointed so far, but party control of the judiciary comes with party control of the White House and it was inevitable after President Bush was elected in 2000 and again in 2004.

I think Senate Minority Leader Harry Reid knows that the judges long under scrutiny are not really that objectionable. After Priscilla Owen finally won confirmation after a four year wait, here’s what he had to say about her, in case Judge Owen isn’t the nightmare liberals have made her out to be:

I hope she surprises those of us who have fought her nomination. Perhaps her experience as a judicial nominee has exposed her to a broader range of views, and that experience may make her more sensitive to concerns regarding privacy, civil rights and consumer rights.

I don’t think Judge Owen will be any worse than your average conservative judge and I wouldn’t be surprised if she decided cases the “liberal” way on many, many occasions over the years, even if in the aggregate her opinions have a conservative bent to them.

Saturday, May 21, 2005

Betting on law review

Red and Blue reports that one section has an "elaborate pool -- Vegas-line style odds and all -- for students to gamble on who will make law review."

I find this pool deeply troubling for several reasons. First, it encourages students to make explicit how smart they think their peers are. I’d hate to find out that my peers think I’m one of the dimmer bulbs in the class. No good can possibly come out of this. (If betting is restricted to those students who voluntarily participate, as could be the case, my objections are somewhat less.)

Second, I don’t think that odds can be calculated with any sense of accuracy. All the people from my section who made law review were worthy, but they seemed to be picked at random. Even for what grades are worth, and they are only a minor factor in the process, there are serious informational asymmetries. How to calculate the odds of those who never speak in class? What about the majority who never talk about their grades?

This whole betting thing strikes me as an effort to divine who the smartest people in the class are, and it is likely to be wildly inaccurate and accomplish nothing except hurt feelings. If I were Dean Kagan, I would ban these gambling pools even though I wouldn’t have the ability to enforce such a ban.

Tuesday, May 17, 2005

Keeping things in perspective

As the showdown over the filibuster reaches a climax, two thoughts to keep things in perspective:

1. Democrats and Republicans are playing up the issue to gain political advantage with their constituencies. But by the time elections roll around in November 2006, this issue will be long forgotten. Over the next 18 months, we will see at least one vacancy on the Supreme Court, and likely more. Scandals will come and go. A global conflict of some scale will occur. If nothing else, the mere passage of time will make the filibuster a non-issue in the next election cycle despite Republican efforts to play up the issue in Republican-leaning states with Democratic senators.

2. For all the hype about how much it matters who our judges are, the importance is of limited degree. To be sure, Republican-appointed judges may be somewhat more likely to decide cases in conservative fashion than Democratic-appointed judges, but generally not by a shockingly large margin. The rule of law has some meaning, even if there is play in the joints. Further, judges lack power to reshape society without the consent of the people because they do not have the power to enforce their decisions. Take for example three important cases for which May 17 is an anniversary. Each demonstrates that even when it comes to explosive civil rights issues, the courts have been either limited or empowered by popular opinion.

May 17, 1954. Brown v. Board of Education has a mixed legacy 51 years after it was decided. On the one hand, there is universal agreement that Brown was correctly decided, and its symbolic importance in breaking down formal barriers in society is unparalleled. On the other hand, schools today are more segregated than they were when Brown was handed down. The Supreme Court tried for 20 years to enforce Brown before it gave up. Changing demographics and resistance had made it too difficult for the Court to desegregate the schools of its own accord.

May 17, 2004. Massachusetts began recognizing gay marriages six months after the state supreme court held the state constitution required it. Massachusetts voters endorsed the decision in the next election by giving control of the state legislature to pro-gay marriage forces, ensuring the defeat of the movement to amend the state constitution. However, the fallout outside Massachusetts almost certainly cost Senator Kerry the presidency and voters elsewhere passed state constitutional amendments banning gay marriage in their states. The Supreme Court won’t dare touch this issue for years to come because if it did, the people would immediately pass a constitutional amendment superseding the decision.

May 17, 2004. On the same day that Massachusetts began recognizing gay marriage, the Supreme Court handed down Tennessee v. Lane, upholding the constitutionality of the Americans with Disabilities Act (ADA) as applied to the states. The decision was a rare victory for ADA supporters; the courts have been aggressive in scaling back the reach of the ADA since its enactment 15 years ago. The courts have been able to get away with it because the ADA is deeply unpopular with business and conservatives and Congress has made no effort to defend the statute.

Because the filibuster promises to be a non-issue in the elections 18 months from now and the filibuster is not going to have much impact, if any, on how cases come out, the real question should be whether the time has come to change the rules of the Senate for their own sake.

Sunday, May 15, 2005

Taking stock

After some thought, I've decided to post on a semi-regular basis this summer, instead of daily as has always been the case. Most of it is because I won't have regular internet access (you heard what the Office of Career Services said about viewing porn on the client's time). Some of it is that there is only so much to say and it's probably been pretty obvious that I haven't had much insightful to say lately.

But this blog shall roll on! I want to hear from you about where this blog has been and where it should go. I know what the regular commenters think. I want to hear from those of you who have never posted. Whether you think this is a pointless blog or you find yourself agreeing with everything I've ever said, I want to hear from you.

Do you like it when I am worldly in my views, or when I stick closer to the law school experience? (I'm only a law student, what do people care what I think about politics?) Have I shown myself to be a political hack artist? Did I tend to ramble about the superficial? Have I made a fool of myself? What about the guest bloggers? Spare no feelings!

I've tried to keep things on the lighter side, harkening back to Abraham Lincoln's appreciation of the comic. I don't know if I've always succeeded, but I like to think that I exposed a some buffoonery along the way.

Saturday, May 14, 2005


Thanks to those who filled in while I was finishing up exams and relocating for the summer. When driving home, I missed the scene below on the Henry Hudson Parkway in Upper Manhattan by about two hours:

Naturally, New York City claims it had just inspected the wall and was going to begin repairs on Monday. You may know that Mayor Bloomberg is up for re-election this year. Perhaps this is the landslide that will sweep him out of office?

Friday, May 13, 2005

Base Realigment and Closing

I'm subbing for POYS today, who is recovering from his unexpected detour into upstate New York as he tried to travel from Boston to New Jersey yesterday.

The Pentagon announced today its recommendations for which military bases to close or realign over the coming years. When I was watching New England local news this morning, the commentators noted that the region stands to lose some 14,500 jobs and were openly speculating that the Bush administration wanted to hit the bluest of blue states hard. It seemed plausible enough to me, and I would have bet the store that Florida and Ohio would see the biggest job gains in this round of restructuring. According to the Pentagon's list, however, Maryland - quite a blue state if I may say so - is actually in line to gain the most jobs at 9,293. Perhaps not surprisingly, Texas is next at 6,150 projected job gains. Ohio, on the other hand, is slated to lose 241 jobs and Pennsylvania is slated to lose 1,878. But the biggest shocker has got to be South Dakota, which under the proposal would lose its Air Force base and a whopping 3,797 jobs out of a total state population of 764,309. This is quite embarrassing to freshman Republican Senator John Thune, who promised in his campaign against former Democratic Leader Tom Daschle that he would be able to save the base. Aside from Texas, then, it doesn't seem like the Pentagon proposal is egregiously political.

While I’m no military strategist, this whole episode seems a bit strange to me. The savings are estimated to be $48.8 billion over the next 20 years, which works out to about $2.5 billion annually, or approximately 0.5% of the total Pentagon budget. I think that buys you about one top of the line airplane nowadays. Numerous small communities will be devastated by the loss of their military bases, and that seems like a high price to pay for an extra 20 planes over the next 20 years. Perhaps Rumsfeld can now spare a few more dollars for body armor?

Thursday, May 12, 2005

France, Please Apologize Already

I am subbing for the usual POYS editor today as he is too exhausted from finishing his last final today.

Recently, the Associated Press published a short article regarding France’s refusal to apologize for Algerian deaths which occurred on V-E day. On that day an Algerian uprising began which would eventually result in the deaths of 15,000 to 45,000 people, depending on which sources you want to believe. I was even surprised to learn how so many people died during a short period of time after the end of World War II, most of whom I assume are civilians. I am also surprised France even had colonial troops and a war ship. Shouldn’t those troops have been helping to fight and liberate France? The Allies had already reconquered Northern Africa by early 1943, and proceeded to launch an invasion to Italy later that year. Any French soldiers still in Africa should have joined in the fight to join the soldiers from other countries who were willing to die to help liberate France.

Although, I may not be aware of the whole situation, I find France to be at fault. While France did have a “legal” claim to occupying territories such as Algeria and Indochina based on the agreements that the Allies worked out, such claims should not be merely accepted as being just simply because the international community accepts them. The Allies were merely trying to help their good old buddy France, restore her status as a world power, even though she essentially had little or no power the previous 5 years. They even awarded France with a sector in Germany for being one of the four main “victorious powers.” I find it hypocritical that the Allies in liberating Europe from tyranny would not choose to liberate other countries that France occupied. We condemn Stalin for what happened with Eastern Europe. But, perhaps we should also condemn the other Allies for not setting a better example.

Personally, I don’t see France’s point of view in refusing to apologize. What right did they have to be occupying Algerian soil? Even if Algeria was at fault for killing two dozen French citizens, how can France today still justify the killing of tens of thousands? The French need to make a strong apology not just for the events following WWII but for her past colonization, which was done for the purpose of exploitation, if they hope to mend ties with Algeria. I’m not convinced the French have it in them to rise to the occasion.

Wednesday, May 11, 2005


According to news reports, Cavaliers star LeBron James has dropped his agent and turned over duties to a high school teammate and friend. If I've learned anything in law school, it is that this type of relationship is a recipe for disaster. I would not be surprised if this ended up in court, especially if LeBron and his friend cut corners when contracting and then something goes horribly wrong. Perhaps 1Ls will be reading about this case in contracts class 5 years from now?

Tuesday, May 10, 2005

Keeping it real

According to the Harvard Crimson , Ian Nichols, the vice president of the undergraduate student council, resigned after incurring the wrath of council members for lackluster attendance at meetings. Nichols had served on a split ticket with the president after each won their respective seats despite campaigning with running mates against each other.

In what promises to be one of the more memorabls speeches, Nichols spoke for less than a minute, and then walked right out. His entire speech apparently consisted of the following:

I don’t feel I’ve really made the UC my number one priority this semester and I don’t know if this whole split ticket thing is working out. Take care guys, it’s been real.

Can you imagine Dick Cheney keeping it real? Or Al Gore for that matter?

Monday, May 09, 2005

Summer associate success

Today, I received an e-mail from the Office for Career Services with an attachment: "Tips for Succeeding as a Summer Associate." Over the next several weeks, 2Ls will be swarming large metropolitan areas, paid insane amounts to do clerical work, and as the memo makes painfully clear, be on our best behavior lest we not be invited back after graduation.

Some of the more memorable tips:
Record all of the time that you actually put into your assignments (not how long you think it should have taken you). It is the partner’s job, not yours, to determine when and how to discount your billable hours for the client. Do not lose credit for all the hard work that you are putting in.

Why would I bill less hours than I actually worked?

Limit your internet use and be sure to avoid even questionable sites. Remember, the firm can track your use. Resist the urge to procrastinate by downloading games, shopping, surfing, emailing, or IMing with friends.

So much for viewing porn on the client's time.

A perceived attitude of entitlement or arrogance (especially from a Harvard student) could easily cost you an offer.

I'll leave this one to Bum from Jersey and JTerpsLaw to comment on.

Meet every deadline, even if it means skipping the ballgame from the firm's box seats!

Allegedly, one of my interviewers had tickets to game seven of the Yankees-Red Sox last fall. Would you have missed that one to make a deadline?

Always bring a pen or pencil and paper to an assigning attorney’s office and make sure you understand what he or she is asking you to do.

What if I embroidered his or her words? Would that make him or her feel important enough?

On the other hand, I'm told I don't want to go too far in that department:

[R]esist the urge to date or “hook up” with another summer associate, attorney, or staff person. As much as you do not want to spread gossip, you certainly do not want to be the subject of it, or risk the fall-out of a romance gone-bad.
And now for my favorite:
Watch your alcohol intake and limit yourself to one or two drinks at an event, depending on your tolerance. Getting drunk or even “buzzed” will impair your judgment and loosen your tongue. . . . And, it should go without saying, avoid the use of illegal drugs under any circumstances.
If it goes without saying, why say it? Are there really people that dumb?

Sunday, May 08, 2005

Corporate law

I came straight to law school from college without any practical experience, odd-end internships aside. For most of my courses, this hasn't been a problem. Constitutional law was relatively easy for me to understand because it is among the more political areas of the law and gets regular newspaper coverage. Everyone has an opinion on the constitutionality of abortion and affirmative action or is at least vaguely familiar with those issues.

But there are times when going straight through hurts. Corporate law is one of them. I think that a lot of my classmates had experience working for investment banks or consulting firms in New York and they probably already know much of corporate law cold. I have no idea what I'm reading about in large part because I don't have any familiarity with the issues. I just finished reading a case about the obligations that controlling shareholders owe other shareholders when making tender offers, and it was painful to read I think because I didn't have any appreciation for how important this issue is. My imagination can only go so far.

Then again, if I had taken time off, I still wouldn't have gone anywhere near investment banking or consulting. I'm not sure what I would have done, though. Maybe that's why I went straight through.

Friday, May 06, 2005

Frist filibuster

The student center at Princeton is called Frist Campus Center in honor of Senator Frist's family who donated the money to build it. Starting on April 26, students have launched a "Frist filibuster" (live blog here) to protest Republican plans to eliminate filibuster when it comes to judicial nominations. I've followed it from the first, but hadn't thought that it would amount to any more than your standard campus protest. But it has garned national coverage and has proven a great embarassment for the senator.

One thing that drives me crazy about the filibuster talk is about how both sides claim that their side is more majoritarian than the other. Republicans hold a 55-45 edge in the Senate and claim that it is only fair that the majority prevail. Democrats observe that despite having 10 fewer seats, Democratic senators actually represent about 30 million more Americans than Republican senators do, which I was surprised to learn.

But both sides miss the point. The Senate never was intended to be a majoritarian institution and never will be. Born of a great compromise during the 1787 convention to appease smaller states that feared they would be drowned out by larger states, the Senate was supposed to be the more reasoned institution while the House was home to the majoritarian mob. In fact, the Constitution explicitly forbids even amendments that would makethe Senate majoritarian; states must have equal number of senators.

Thursday, May 05, 2005

Conservative environmental attorneys

Earlier this week, the Federalist Society passed along information about a job opportunity for after graduation. The first line of the e-mail says it all (caps in original):
If you know a conservative environmental attorney, I have a unicorn to show you.

Constitutional formula

There is an inexplicable line of cases in constitutional law. One example of this line of cases is Plyler v. Doe, where the Court said that a statute denying public education to the children of illegal immigrants was neither a violation of the Due Process Clause alone (because there is no right to education) nor a violation of the Equal Protection Clause alone (because illegal aliens are not a suspect class) but somehow violated the two clauses put together. Critics charge the Supreme Court with substituting its judgment for the people. At minimum, the judicial opinion is totally incoherent. But long last, after reading and rereading this opinion, I have come up with the formula that explains it all:


(due process plus equal protection to cheat the people)

Wednesday, May 04, 2005

A Historic Undermining of Taiwanese Leadership

I am subbing for the usual POYS editor today as he is surely busy studying for his finals.

For the first time in over half a century, Taiwan Nationalist party leader, Lien Chan, met with Chinese President Hu Jintao last week for the purpose of easing tensions between the two long-time rivals. Although this was a historic meeting, the first since a meeting between Chiang Kai-Shek and Mao Zedong back in 1945, one must not place too much emphasis on the results of such a meeting. After all, the Nationalist party is no longer the ruling party in Taiwan after losing for the first time back in 2000 and again in 2004. This would be like Howard Dean holding negotiations with Al Qaeda, an enemy who threatens to attack the United States. Then, it would be like Al Qaeda treating Howard Dean as if he were the president of the United States, in hopes of showing that the Democrats can effectively negotiate a peace that will ensure no more terrorism in the United States for the purpose of getting back at the Republicans. The notion is ridiculous. But this is the game that China and the Nationalist Party are playing.

This meeting is a ploy to undermine the ruling Democratic Progressive Party (DPP) in Taiwan. In recent times, China has hated the DPP more than the Nationalists for the DPP’s refusal to acknowledge that Taiwan is even a part of China, even though in reality Taiwan and China are sovereign nations with different governments. The Nationalists' hate the DPP simply because they are the Nationalists' main opposition and have taken their power away. Lien Chan is hoping to gain popularity with the Taiwanese people in showing that he can improve relations with China and avoid a war in the future. China, on the other hand is hoping that she will not have to make good on her threat to invade Taiwan, should Taiwan declare independence, and can eventually acquire Taiwan through peaceful means as she did with Hong Kong.

I cannot help but think that the Nationalists are betraying the Taiwanese government and the Taiwanese people. Clearly, the popularly elected government of any nation should be the one to represent the nation in talks of this magnitude, especially if such talks have not occurred in 60 years. Chan’s desperation play could hurt his own party’s credibility in the long run as a party that is willing to negotiate with the enemy to preserve its own power and perhaps more significantly, hurt Taiwan’s chances for becoming an independent democratic nation, one that is formally recognized by the rest of the world.

Tuesday, May 03, 2005

Summing the last 10 years

The New York Times reports that a firefighter who suffered brain damage when a burning roof collapsed in 1995 and who had been virtually silent until suddenly asked for his wife and was surprised to learn that it was now 10 years later. Compared to what happened with Terri Schiavo, his story is a heartwarming one, including the moment when the nurse told him that his son was on the phone and he said that couldn't be beacuse the son was just a baby.

I once heard about a movie about an East German woman who went into a coma and awoke after the fall of the Berlin Wall and her family did not want to upset her so they pretended there was still an East Germany. This has me wondering how the firefighter's family can possibly try to explain what happened in the last ten years, how we got from Clinton to Bush and what happened on September 11 and how that led to Iraq. How the Yankees won the World Series for the first time in 18 years and then how the Red Sox won for the first time in 86 years.

And somehow, it seems that those things are all that one really needs to know to be fully up to date . . .


I admit that recent posts have been less than scintillating, with finals near. You know you have had too much corporate law when Revlon is no longer a cosmetic brand but a type of legal obligation corporate boards owe their shareholders.

Monday, May 02, 2005


Filling in for POYS today. Some of the GOP moderates in the Senate are at it again, balking over things like the Bolton nomination. One of them, George Voinvoich of Ohio, singlehandedly cut in half the size of President Bush's 2003 tax cut. Perhaps this tells us why?
George Voinovich is not your typical Bush loyalist. A self-styled deficit hawk, the former Cleveland mayor and Ohio governor is so frugal that he once fished a penny out of a urinal in the Statehouse.

Saturday, April 30, 2005


The First Lady to the President, on his notoriously early bedtimes:

"If you really want to end tyranny in the world you're going to have to stay up later."

Governor Schwarzenegger

Governor Arnold Schwarzenegger is now as unpopular in California as was his recalled predecssor Gray Davis. This development presents several possibilities for Californians:

1) Terminate him at the next election.

2) Have President Bush make him ambassador to Austria to determine exactly when and where the Soviet occupation of Austria occurred. (Credit to Ha ha hit him again for this one.)

3) Get rid of Arnold by launching a national movement to amend the Constitution to permit foreign-born presidents.

4) Recall Arnold and replace him with Gray Davis.

Friday, April 29, 2005

President Bush as role model?

President Bush held a press conference last night in an effort to revive his sagging efforts to reform Social Security. During the course of the question and answer period, which ranged across many topics, President Bush had the following to say:

Role of religion in our society? I view religion as a personal matter. I think a person ought to be judged on how he or she lives his life or lives her life.

And that's how I've tried to live my life: through example.

But exactly what sort of example has he set? All I can think of is that he hasn't cheated on his wife or lied under oath. Other than by comparison to Clinton's obvious flaws, I can't think of any positive examples that Bush has set for the rest of the country by how he has led his personal life. I'm interested in hearing what you think.

Thursday, April 28, 2005

Communist capitalists

There are two popular epithets for Jewish people. One is that they are all communists. The other is that they are all capitalists. Goes to show that the Jewish people can't win no matter what they do.

Nonetheless, a communist capitalist, now that is something. It turns out that communist capitalism is exactly what the Chinese are trying to do, embracing a market system under the rubric of communism.

You tell me if any of this makes any sense.

Wednesday, April 27, 2005

The big bucks

Today, at 5 pm, the Office of Career Services is offering a seminar called: "They Have Shown Me the Money, Now What Do I Do With It?"

More to the point, do attorneys at big law firms even have time to spend it?

Tuesday, April 26, 2005

Reforming the course selection process

This week, we have to pick all of our courses for next year. The way the lottery is done, we rank our top 30 courses. The computer randomizes the order of students and then goes down the list, assigning each student the highest available course on his list. After each round, the computer rerandomizes, giving higher priority to those who placed low the previous round and perhaps did not get his or her preferred course. The idea is that doing the entire academic year in one shot is more equitable because it balances out over more courses; were the lottery to go by semester only, some students might be more likely to get lucky both semesters.

But doing the entire year in one shot means that some students can end up with more courses one semester than the other -- as happened to me last year, though I was able to balance things out a bit. It also means that students can end up with at least one course that they had no intention of taking. I ended up with a course on choice of law doctrine that was #26 on my list; after the first 15 courses, I had just picked the rest at random. Although choice of law doctrine is useful to know, it was not high on my list of interesting courses and I was able to switch out. This year, for fun, I listed a seminar on art law as #30 on my list.

Here's a better way to do it. Throw out the lottery system and institute a market system. Assign students a fixed number of points to bid. For example, students could be given 100 points to bid, and they can assign the points however they want. If a student really wants to take constitutional law with Larry Tribe and the course has 100 spots, he can bid 50 points on that course and get into the course if there are less than 100 other students who bid 50 points or more. In the event of ties, 3Ls could win out over 2Ls, and among students the same year, chance might have to do. If we wanted to further privilege students on the basis of seniority, we could assign 3Ls more points to bid than 2Ls. The market works for almost everything, and I don't see why it wouldn't work here as well.

UPDATE: I thought about this some more, and now propose that students see what other students have bid, so that they have perfect information about the market and can adjust their bids accordingly. The market would "close" at some predetermined date when courses would finally be assigned. Either that, or students would need information about how students bid for particular courses in past years. That would present two obvious problems: how to do this the first time around, and how to do it for courses offered the first time in later years. Although there is something to be said for uncertainty, I think that if students had access to the market information at all times, there would be more consensus that the system was "fair."

Monday, April 25, 2005

Pressing question

President Bush with the Saudi Arabia's Crown Prince Abdullah, asking how much gas a gas pump could pump if a gas pump could pump gas, if only OPEC would allow it.