Eminent Domain

One of the coolest law blogs, Underneath Their Robes, is back. David Lat, better known as Article III Groupie, has reopened the blog after leaving his job as a federal prosecutor. The site, which focused on judicial gossip, closed after Lat outted himself as A3G. It's kind of weird that Lat writes as a character, but it has definitely made his blog unique. I'm glad UTR is back.

EDIT: I decided to throw this message at the end of this post. To my two dozen or so readers, thank you for reading this crap that I throw onto the internet. I would probably do this regardless, but it's much more fun knowing that there are actual human beings reading what I write. It's great motivation to put time and effort into my posts. So again, I thank you. I hope 2006 is full of happiness, good health, and originalists on the federal judiciary.

Now if you will excuse me, parties await... (EDIT: no partying for me...)

I know this article is everywhere, including the front page of the MJS today, but I'm going to link it just in case anyone missed it. The comedy stylings of the Supreme Court Justices have been studied in the latest edition of Green Bag. It's a nice introduction to the personalities of the Justices for anyone who isn't familiar with them. Here's my favorite part...

Sometimes, the laughter that apparently filled the courtroom is hard to comprehend. Roberts, for instance, got a laugh for this observation at an October argument on assisted suicide: "The relationship between the states and the federal government has changed a little since Gibbons v. Ogden," a landmark decision in 1824 about national regulation of the economy.

That's hilarious. Law hilarious. I'm hoping that the Roberts Court will be a goldmine of legal comedy. If President Bush wants to help that trend along, he can nominate Judge Alex Kozinski for the next vacancy.
You can read some of his writings here. I highly recommend his Guide to Nintendo Shopping, written at the height of the 8-bit age of the Nintendo Entertainment System. More appeals court judges should examine the ins and outs of Metroid.

A few contributors to National Review have their 2006 predictions on their website. Most of them are serious, some of them are humorous. I think it's interesting to see what they're guessing will happen in the coming year. I thought I would take a crack at it too...

Judge Alito will be confirmed to the Supreme Court with fewer votes than Roberts.

There will be another Supreme Court vacancy at the end of the term. If it is a retirement, it will be either Stevens or Souter. Ginsburg won't leave unless she dies. Bush will once again buck conventional wisdom with his pick, but will make a solid choice. His two legacies will be Iraq (for better or worse) and the Supreme Court (which will pretty much be the Bush Court by the end of 2008). In total, he'll get three vacancies, possibly four.

Roe v Wade will still be around. The Court will get back on track after the Raich detour and continue Rehnquist's federalism views from Lopez and Morrison. Chief Justice Roberts will more than live up to his hype.

Zarqawi will be killed or captured. Bin laden will not.

The Republicans will hold both houses of Congress in the midterm elections. The Democrats will pick up a few seats in the House. The Senate will remain about the same. The Senate Republicans will still suck.

In spite of Republican bumbling and scandals, the Democratic leadership of Reid, Pelosi, and Dean still won't achieve any significant gains with the voters. Poor showings in the midterms will increase dissatisfaction with Dean.

Ted Kennedy will consume a drink containing alcohol.

None of the big issues, Social Security, health care, real immigration reform, will be tackled.

The pro-democracy movement in Iran will gain ground and clash violently with the government. Israel will strike Iran if their nuclear program succeeds. Iraq will very slowly improve (as it has been), but the media will continue to ignore any and all good news out of the country.

Jim Doyle will not be governor of Wisconsin.

The Wisconsin amendment to ban gay marriage will pass overwhelmingly.

If he chooses to run (and he will), Herb Kohl will be re-elected in spite of doing nothing during his time in the Senate. Only Tommy can beat him.

Milwaukee will remain a violent, disgusting city. We will have another violent crime so shocking that it makes national news. Our mayor and police chief will give a speech for the TV cameras, shrug their shoulders, and do nothing of merit.

Marquette University will have at least five bad PR moments.

I will close Eminent Domain.

I will still have no idea what I want to do upon graduating law school.

After having a great night last night, I woke this morning to find that a horrible crime had been committed on my own property. Some dipshit stole the Confirm Alito sign from my front yard. Originally, I had been bringing it in every night. For the past month or so, I left it out at night hoping that it was safe and that my neighborhood wasn't full of mouth-breathing inbreds. Unfortunately, I overestimated the decency of the people in this area. It was there at 1 AM, so the crime must've occurred between then and 8 AM when I woke up.

It bothers me that free speech and property rights have so little respect these days. Does one black and white sign proclaiming support for a Supreme Court nominee bother you that much? You are forced to trespass into my yard and steal my personal property? Wow, thin skin. If Alito puts that much of a bug up your ass, why don't you put up a sign of your own in your yard? You get to express your opinion, I get to express mine, and Thomas Jefferson doesn't spin in his grave.

I'm trying to figure out what to do in response. The hearings are less than two weeks away. In order to get another sign, I have to order it through a website. Processing and shipment will take time. I would probably get the sign after the hearings are over, so that seems like a bit of a waste. I could make a sign, but I'm not really artistic. I could make a different sign stating "Thank you, thieving moron. I have made a donation in your honor to the Republican National Committee." I'm not really sure what I'm going to do. I'm quite pissed off though.

If you haven't noticed, I have been avoiding legal topics lately. I realize that this is technically supposed to be a legal blog for the most part, but that area of my brain seems to be off right now. I guess I'm taking a vacation from law school and legal thought in general. Also, Volokh seems to be down today, so I don't have much inspiration (a site to steal material from).

Here's the plan. I'm going to go light on the legal issues for a while. I'm sure I'll make yet another post complaining about how much my books for next semester cost. That's law school related. Beyond that, I'm just going to write about other stuff for a while (unless I find a legal issue that I really want to write about). Once the Alito hearings begin, I'll be on that like Rosie O'Donnell on a ham though.

Author Michael Crichton's most recent lecture is a pretty interesting read. If you aren't familiar with him, Crichton is the author of books like Jurassic Park, Prey, and most recently (and controversially) State of Fear. He has been assailed by the environmental movement for State of Fear. I think the criticism is way off base. The running theme throughout the novel is that human beings try to fix problems that they don't completely understand. The "fixes" end up making the problem worse or, at best, just waste a lot of time and money. We view everything as a "crisis" or "disaster" and end up paralyzing ourselves with fear about everything.

From Y2K, to the population bomb, to mass extinctions, to global cooling (remember that one? sure did a 180 there...), to magnetic fields, we have scared the crap out of ourselves about anything and everything. The most interesting part of the lecture is the section about the management of Yellowstone National Park (it's about halfway down). If you only want to read one part of this, read that part. Last summer, I read Playing God in Yellowstone by Alston Chase, so this isn't new information to me. Crichton does a nice job of summing up the sordid history of the park though. After that, Crichton gives a nice summary of complexity theory, which is at the heart of all of this.

We live in a world of complex systems. The environment is a complex system. The government is a complex system. Financial markets are complex systems. The human mind is a complex system---most minds, at least.

By a complex system I mean one in which the elements of the system interact among themselves, such that any modification we make to the system will produce results that we cannot predict in advance.

Furthermore, a complex system demonstrates sensitivity to initial conditions. You can get one result on one day, but the identical interaction the next day may yield a different result. We cannot know with certainty how the system will respond.

Third, when we interact with a complex system, we may provoke downstream consequences that emerge weeks or even years later. We must always be watchful for delayed and untoward consequences.

There's a section of it. Crichton closes saying that we can manage complex systems, but we have to be humble about it. Be able to admit that you are wrong or something that had worked in the past no longer works (because of changing conditions), then change your actions accordingly.

I really like the end, where Crichton quotes an article worrying that all of these earthquakes, hurricanes, and floods mean the coming end of the world. He responds...

Is this really the end of the world? Earthquakes, hurricanes, floods?

No, we simply live on an active planet. Earthquakes are continuous, a million and a half of them every year, or three every minute. A Richter 5 quake every six hours, a major quake every 3 weeks. A quake as destructive as the one in Pakistan every 8 months. It'’s nothing new, it'’s right on schedule.

At any moment there are 1,500 electrical storms on the planet. A tornado touches down every six hours. We have ninety hurricanes a year, or one every four days. Again, right on schedule. Violent, disruptive, chaotic activity is a constant feature of our globe.

Is this the end of the world? No: this is the world.

It's time we knew it.

David Bernstein over at Volokh has a post today about future Israel-Iran "relations".

My contribution is that I just returned from Israel, and I found a remarkable consensus in favor of doing whatever is necessary to stop Iran (a consensus no doubt solidified by Iranian threats to annihilate Israel, and recent vicious anti-Semitism emanating from the highest rank of the Iranian government).

Things have been heating up in the Middle East (not that it's ever very lackadaisical there). Iran has missiles capable of hitting Israel. Iran is working feverishly to develop nuclear weapons. Iran has threatened Israel. Iran's president has recently called the Holocaust a lie. Seems a little troubling, doesn't it?

Bernstein believes that Israel will attack Iran. If I was laying down a bet in Las Vegas about this right now, I would agree with him. The Israelis have no problem using force when they believe that they are threatened. They also have no problem being ostracized by the international community. Remember that in 1981, Israel destroyed the Osirak nuclear facility in Iraq. At that time, everyone in the world, including the US, condemned the action. A decade later when Operation Desert Storm was underway, I think we were very glad that the Israelis acted when they did. What will the results be? Bernstein mentions Hezbollah (or Hizbullah if you prefer Bernstein's spelling) being used as Iran's arm to strike back. With all of the internal issues in Lebanon in the past year or so, I'm not convinced that they have the will or ability to restrain Hezbollah and prevent attacks on Israel. If Israel then puts various kinds of pressure on Beruit, the Syrians may see that as an opportunity to regain some of the influence they've lost in Lebanon recently. There is also the minor issue of a large chunk of the US military sitting in the middle of this.

I guess my point is that this could get very bad, very fast. I certainly hope that it doesn't. I still feel that if the Israelis feel like a nuclear Iran is a threat to their security, they will act. The fallout (no pun intended) of such an attack is unknown.

We are two weeks away from the start of the Alito confirmation hearings. Classes resume on the Wednesday of that week, so I only get to watch two full days. But on Monday and Tuesday, I will be staked out on my couch, most likely screaming at Joe Biden through the television.

The Media Research Center has compiled the best (worst?) media quotes from this year. These are always fun to read. It's also a good link to forward to anyone who fails to see a bias in the media. Here are a few of my favorites...

"It's like he [President Bush] stuck a broomstick in his [FDR'’s] wheelchair wheels."

- Newsweek'’s Jon Meacham on MSNBC'’s Imus in the Morning May 9, discussing Bush'’s criticism of Roosevelt'’s Yalta deal with Stalin on post-war Europe.

God forbid anyone criticize the sainted FDR. Maybe, just maybe, it was a bad idea to give Eastern Europe gift wrapped to the Soviets. There was that whole 50 years of oppression and dictatorship thing.

"An Advocate for the Right."
- Headline over a New York Times "news analysis" of Judge John Roberts'’ judicial philosophy, July 28.

vs.

"Balanced Jurist at Home in the Middle."
- Headline over a June 27, 1993 New York Times story on Supreme Court nominee Ruth Bader Ginsburg.

Haha. If that isn't telling, I don't know what is.

Nina Totenberg: "I was very happy to see him [Bush] take responsibility and to not pretend that the buck stops someplace else. But it would have been a great opportunity to say, 'Look, I'm for tax cuts, but we need a Katrina tax, we need to really pay, to do this and to pay for it.'"
Moderator Gordon Peterson: "You want more taxes."
Totenberg: "I want more taxes, yes."
- Inside Washington, September 17.

Okay. You pay 'em.

"Do I need to be concerned that I'm going to go live with a church family, are they going to proselytize me, are they going to say, '‘You better come to church with me or else, I'm, you know, you're not going to get your breakfast this morning'?"
- Co-host Harry Smith asking author/pastor Rick Warren about church families taking in those displaced by Hurricane Katrina, on CBS'’s Early Show, September 6.

Smith has apparently never met a religious person in his entire life. They are some strange, mythic creature, like a unicorn, whose behaviors are unknown.

And my favorite media moment of the year...

Matt Lauer in Baghdad: "Talk to me...about morale here. We've heard so much about the insurgent attacks, so much about the uncertainty as to when you folks are going to get to go home. How would you describe morale?"
Chief Warrant Officer Randy Kirgiss: "In my unit morale is pretty good. Every day we go out and do our missions and people are ready to execute their missions. They'’re excited to be here."
Lauer: "How much does that uncertainty of [not] knowing how long you're going to be here impact morale?"|
Specialist Steven Chitterer: "Morale is always high. Soldiers know they have a mission. They like taking on new objectives and taking on the new challenges...."
Lauer: "Don'’t get me wrong here, I think you are probably telling me the truth, but a lot of people at home are wondering how that could be possible with the conditions you'’re facing and with the attacks you'’re facing. What would you say to those people who are doubtful that morale can be that high?"
Captain Sherman Powell: "Sir, if I got my news from the newspapers also, I'’d be pretty depressed as well."
-— Exchange on NBC's Today, August 17.

That's the most polite way I've ever heard someone say "fuck off".

After reading all of these quotes (or just the ones I've reproduced here), take a look at this one...

"I'’m going out telling the story that I think is the biggest story of our time: how the right-wing media has become a partisan propaganda arm of the Republican National Committee. We have an ideological press that'’s interested in the election of Republicans, and a mainstream press that's interested in the bottom line. Therefore, we don'’t have a vigilant, independent press whose interest is the American people."
- Bill Moyers, who retired in December 2004 from the PBS show Now, as quoted by AP television writer Frazier Moore in a December 10, 2004 dispatch.

If these are the actions of an ideological press that is interested in electing Republicans, they need to reevaluate their tactics.

Ever hear of "cultural protection"? Basically, other countries want to keep US movies and TV out of their countries. After all, we wouldn't want people to be able to choose what they get to watch. That would entail some element of freedom, and we can't have that. The citizens of these other countries don't seem to agree with their leaders...

At the same moment France'’s culture apparatchik voted to keep Hollywood out, his countrymen were voting very differently with their euros: They made Dreamworks' Wallace and Gromit: The Curse of the Were-Rabbit the top French film two weeks running. Among France's other hits of 2005: Bewitched, Fantastic Four, Charlie and the Chocolate Factory, and Star Wars: Episode III.

And...

Canadians this year doffed their toques to American fare such as Doom, Flightplan, Four Brothers, and Wedding Crashers. U.K. audiences liked all the above plus The Longest Yard, The Dukes of Hazard, and The Ring Two.

It's good to know that bad taste is universal.

Many of these countries push an economies of scale argument, saying that the US produces so many movies that their native industries cannot compete with the volume or the costs of production. Quick question: what country produces the most movies per year? Not the US. It's India. Shouldn't Indian movies be everywhere if that argument is true? The truth is that US entertainment companies produce movies and shows that people like to watch. They're good at their jobs. These other countries, led by France, just can't stand the competition.

As you can probably tell by the PETA Sucks link on the right side of the screen, I don't have many positive feelings towards PETA. After just reading this column by talk show host Cam Edwards, I'm feeling a little more perturbed at PETA than normal so I decided to put everything I hate about animal rights groups into one big post. It's unfortunate that most people don't know what lurks behind the scenes at PETA and other groups. They see the anti-fur ads or the videos of cattle mistreatment and think "Oh, PETA just cares for animals. I care for my doggy/kitty/giraffe too, so I better send PETA a check." Things are much worse than you think.

PETA and groups like it protest at animal shelters (usually in skeleton costumes or something as equally subtle) because the shelters have to kill dogs and cats. No one adopts them, so the shelters can only take care of them for so long before the little critters get gassed. The shelters don't have the funds to hold the animals indefinitely, and the protesters are rarely seen taking a new pet home after the protest. The protesters are also rarely seen raising money and cutting a check to supplement the shelter's funds.

Stop and think about this for a minute (since the animal rights protesters do not). Who is likely to work at an animal shelter? Probably someone who likes animals. These are people who do everything that they can to get the animals a good home and keep them alive and happy for as long as possible. They aren't junior concentration camp operators.

As a side note, my dog (who is sleeping at my feet as I type this) was adopted from an animal shelter. So yes, I'm going to look down my nose at all these protesters who leave the shelters pet-less.

I know what you're saying. "Steve, you're just pointing out that these groups are attention whores who love to protest things but not actually contribute something to solving the problem. That's the standard operating procedure for many adovacy groups. Why are you picking on PETA and their underlings." And I respond, wait. There's more.

PETA has a hell of a lot of money at its disposal. With over 750,000 members worldwide, they have no shortage of funding. That massive chunk of resources is at the fingertips of one Ingrid Newkirk, president and founder of PETA. Here's a choice quote from Newkirk's speech at the Animal Rights 2002 convention...

Most people in this room understand that slavery is not over in America, or in the Western world, or in the world in general. The animals are today's slaves.

Well, Newkirk is sort of right. There is slavery in the world. It's in places like the Sudan where people are still bought, sold, and owned. But she doesn't seem to give a rip about that little problem.

As noted above, PETA has no problem going way overboard with their arguments. They got in a little trouble with the Holocaust on Your Plate ad campaign. That's right. You the meat eater are no better than the Nazis. PETA equates one of the greatest crimes in human history with chicken farms. They seriously believe this stuff. The only explanation that I have for this trivialization of the Holocaust (which this is) is that PETA doesn't really care about people. They care more about livestock. Anyone who cared about human beings would not use Holocaust footage in such an exploitive way.

PETA loves to use its money to go after your kids too. I already made a post about PETA's crusade against the evils of fishing. They also send this guy, Gary Yourofsky, into schools to preach this crap. Anyone who compares themself to Martin Luther King, Gandhi, and Jesus in the same speech has a huge ego problem. He's also done time in Canadian prison. He stands up in front of a class and says that animal research is unscientific and animal derived data cannot be relevant to another species. What school is letting this crap in?! I guess Yourofsky is right if you ignore polio, measles, anthrax, yellow fever, tetanus, chicken pox, smallpox, hepatitis A and B, rabies, mumps, cholera, and rubella, as well as other medications, devices, and treatments. Mary Beth Sweetland, senior VP of PETA, is a diabetic who uses dog research-derived insulin to stay alive. She thinks her life fighting the good fight is too important for her to take a principled stance, quit the insulin, and die though. No hypocrisy there at all.

There is a phrase, "total animal liberation", that PETA uses occasionally. What does it mean exactly? PETA opposes zoos, circuses, horseback riding, apiaries (when will those human monsters stop enslaving bees and taking their honey?), fishing, the use of service animals (those would be seeing eye dogs for the blind), and pets. Yeah, no pets allowed according to PETA. You know, those animal shelter protesters from earlier in the post are starting to make more sense now. Of course they won't adopt an animal and give it a loving home; they view that as immoral.

Now onto the bottom of the barrel. Professor Steven Best is an activist with ties to the ALF, the Animal Liberation Front. Edwards touches on this group in his column. These freedom fighters firebomb animal testing labs in their spare time. They break in and free animals, leaving spray painted slogans like "VEGAN POWER" and "ANIMAL LIBERATION" on the walls. Best sees these tactics as totally legitimate. He also predicts that violence will be used against animal rights abusers in the future. Avid hunter, carnivore, and musician Ted Nugent has dealt with these threats as well. People have threatened to murder his children on the way to school because the Nugents eat meat.

And if we finally scrape the very bottom of the barrel, we'll find Rod Coronado. He gained infamy for firebombing a Michigan State University lab, as well as six others, in the name of animal rights. These aren't charges; he's admitted his crimes in court. Guess who funded this activity? PETA and Ingrid Newkirk. As much as I hate the IRS and the tax code, it is useful for some things. Their tax return for 1995 shows a $45,000 donation to the Rodney Coronado Support Committee. PETA also made a "loan" to Ray Coronado, Rod's dad, that Ray knew nothing about. I guess this is PETA trying to be craftier about how they move their money around.

Now for the final blow. PETA kills animals. Also on their helpful tax returns is a notation for a walk in freezer purchased on 5-28-02 for $9,370. Why on earth would a non-profit animal rights organization need a freezer that big? Keep the on site tofu supply chilled? Nope. "...[S]ometimes the only kind option for some animals is to put them to sleep forever," said by Ingrid f'ing Newkirk. Over a thousand dogs and cats were killed at PETA headquarters in 2002.

Is this an incredibly long winded post? Yes it is. But I can't stand these people. They make my blood boil. They use violence and property destruction as their tools because they cannot convince people rationally that their goofy ass viewpoint is correct. I think this sums things up nicely...

I bought this for myself for Christmas...

If you can't read it, it says Ted Kennedy Driving School, Est. 1969, Chappaquiddick, MA. The picture is a car underwater surrounded by fish and empty bottles.

I never claimed to be a tasteful or mature person.

I found a link on Prof. Bainbridge's blog to an article by Professor Benjamin Barton which claims that the Harry Potter book series is libertarian propaganda. I haven't read any of the Harry Potter books, but I have seen the first three movies. Obviously, I'm getting a much more condensed version of the Potter world in the movies, but I still see some of the points. The abstract states...

The first is that Rowling presents a government (The Ministry of Magic) that is 100% bureaucracy. There is no discernible executive or legislative branch, and no elections. There is a modified judicial function, but it appears to be completely dominated by the bureaucracy, and certainly does not serve as an independent check on governmental excess.

From what I've seen in the movies, this is true. The Ministry of Magic is totally bureaucractic, a libertarian's nightmare.

I'm going to read through the article during the day and see if I'm really convinced. There is a warning at the beginning that there are a lot of plot spoilers in the footnotes, so that should make up for my lack of familiarity with the text. I hope it's true and I hope it sticks. This country could use more people who aren't in love with big government poorly providing services in inefficient ways for extremely high costs.

Becker and Posner are talking execution this week. It's an interesting take, especially considering that Posner is a judge. Well worth your time.

What am I doing on Christmas morning? Not much. I watched a movie called The Corporation. It seems like this will be the decade of the ideological documentary, because there's no end in sight of these things. I like to watch these things whenever they are on the Sundance Channel (Robert Redford's ideological mouthpiece of a cable movie channel) just to see what's out there. If you have two and a half hours to kill (and I did this morning), it might be worth watching. I don't think it's worth watching for its intended point but to understand the motives behind it. A few highlights...

Milton Freidman made a brief appearance, injecting a dose of much needed sanity. When talking about "corporate morals", he asked an almost obvious question. How can an office building be moral? That's exactly what you are asking when you ask a corporation to be moral. A corporation is a structure. It is a legal construct created for a purpose. People have morals. People commit crimes, get prosecuted, and go to jail. We don't throw corporate papers into a prison cell, because that would be pretty freaking stupid. The corporation's charter doesn't need to be behind bars, the people do.

There was a very alarmist portion about the loss of the commons and private ownership taking over. I was pretty taken aback when pollution credits were portrayed as bad things. The filmmakers seemed to view the system as having the entire world owned by someone somewhere. There was no mention of the Tragedy of the Commons. The filmmakers have forgotten that publicly held commodities suffer and are eventually depleted by the selfish behavior of individuals. It is that system that has let companies pollute for so long without paying for it. Environmental groups have used pollution credit systems to buy up credits and hold them, reducing the amount of pollution that can be produced.

There was the familiar claim that ads manipulate kids. They claim that parents have been overpowered by "nagging" and are cannot withstand the purchasing desires of their kids. Give me a break. "No." It's a simple word, two letters long. Start to use it. If you can't deal with your kid whining and crying over some new toy, then you probably shouldn't have kids. If you really can't stand the pressure of an 8 year old, don't own a TV.

Noam Chomsky, the intellectual training wheels for most left leaning college sophomores, made a few appearances bemoaning "privatization tyranny" as he loves to do. He argued that we should avoid privatization and let public companies run at a loss if benefits will appear elsewhere. Chomsky's definition of what you NEED to buy is interesting too. Personally, I think I know what I need to buy. If we lived in Chomsky Land where we only bought what he told us we should, we would all have to wear those God awful sweaters that he wears. Frankly, I don't want to live in a world with that little fashion sense.

There was some girl bitching about the imperialization of branding, but I was busying playing with my new cell phone (how's that for a little consumerist irony?) Sorry, the movie got dull in the middle there. She looked like the type who never got any dates, so she decided to rage against the machine and rage against body shaving.

Michael Moore tried to make the point that the parents of the kids in the Columbine area (made infamous by the school shooting) worked primarily for Lockheed Martin, making as he said "weapons of mass destruction." Pretty weak point, considering neither of the shooters parents worked for Lockheed. David Kopel points this out, "Of course the connection is nonsense. While one killer's father once served in the Air Force, neither family worked in the defense industry. The other killer's parents were gun-control advocates -— so much so that they forbade him to play with toy guns -— unlike the many children who are shown with toy guns elsewhere in the film." But let's blame it all on the eeeeeeevil corporation instead of placing the blame with the individuals.

Here is the message that I got from the movie. Blame the institution of the corporation for everything. This is just absurd. It is just another plank in the argument against any personal responsibility anywhere. Everytime that a corporation breaks a law, there is an individual behind that decision. Why not prosecute them for actually committing the crime? Don't drag World Com through the mud, throw Bernie Ebbers in prison.

I found the use of the word "corporation" strange. Throughout the movie, it was always used in a negative way and directed toward what I think are a very specific and small group of corporations. Basically, anytime a company does something bad, they are a Corporation, a villain of classic Disney movie proportions. I know people who have their own corporations. One of my old college professors created one for his business. Is his corporation a "psychopath" as the movie claims, simply because it exists? No way. That is where the true point of the movie lies. It's simply anti-capitalist. They use the term "corporation" (which is excessively broad) and try to give the term a universal negative connotation. They ignore the fact that they are talking about individual crimes and practices, not something inherent in the corporation itself. I don't think my professor's one-man private investigation corporation is really raping the natural world that much.

From a legal point of view, corporations are artificial persons. This is a reoccuring scary point that is made over and over. But why are they treated that way? There is no real other option. How else do you organize a group of people for a business? Do you get every one of them (the shareholders) to sign every contract that the corporation enters into? Do you have to sign the contracts again when a shareholder sells his stock to someone new? For all of you who have been wronged by these evil corporations, how would you sue them in another system? Do you file suit against every individual shareholder? The court costs alone would bankrupt you. Then major corporations would be totally insulated from lawsuits unless you organized the mother of all class actions.

Do a little exercise with me. Imagine a world without all of these corporations. Pfizer is portrayed in the movie as a bit of a bastard. I'm sure they have been picked as just the example of all pharmaceutical companies, heartless money grubbing creatures that they are. Now imagine a world without these companies. Who is producing the drugs? Who is doing the research and development of new treatments? In Chomsky's world, these would be publicly owned companies. That's a linguistics professor's way of putting a nice shine on what would be called government owned companies. That's right, a drug company brought to you by the people who gave you the Department of Motor Vehicles and the US Post Office. Do you think that would be run efficiently? Do you think that Washington would let it run without sticking their noses into day to day operations?

Now imagine every corporation run like that. The amount of bureaucracy would be staggering. Instead of all of the power being in separate board rooms and by individual investors, the power would be in Washington. The bulk of the power would likely not be with the elected officials either. They would be in the agencies with the career bureaucrats. The unaccountable people that you never get to vote for would have the real power. And unlike corporations, the government never goes out of business. That sounds like a recipe for tyranny worse than anything that was shown in the movie. In the marketplace, you vote with your dollar. Don't like what a company does? Buy from someone else.

Well I figured that my first real post back ought to be a big one. Now if you'll excuse me, I'm going to watch the end of the Disney World Christmas Parade, like the good little corporate whore that I am.

...and it feels great. I had no idea that ignorance of the world around me was so wonderful. I've been really busy with work for the past few days, tallying up 39 hours in the past four days (I also work two more days, so what up, overtime?). I have barely touched a newspaper, I have only glanced at a few websites and blogs, and I lack a general understanding of any current issue, event, or happening. Something about wiretaps? The 4th Circuit and the Padilla case? Judge Posner comes out heavy in favor of intelligence gathering? Ok, I read that one. I also read Patrick McIlheran's opinion piece about my beloved Senator Feingold. One thing really jumped out at me in that piece...

The wet blanket that The New York Times threw over the triumph of the Iraqi election, this revelation the feds were spying on possible terrorists, provides a wider audience.

Isn't that odd how this story broke right when Iraq had their election? It's gotta be a coincidence. Gotta be. Really.

Once I finish the work week from hell, I'm going to spend a day or two just reading what I missed. As nice as it is to not worry about this stuff, I'd rather have some idea about what's going on. I just don't feel whole if I don't read news coverage for a few hours a day.

My non-trademarked moment of zen this week occurred yesterday afternoon when a co-worker saw my Confirm Alito sign in my yard. She asked what it meant, so I explained who Alito was and what he was nominated for. She said, "Oh, well I'll vote for him. When is it?" I gave her a crash course in Article II of the Constitution.

Here are a bunch of pictures taken outside of the prison before Stanley "Tookie" Williams was executed. Socialists and the Fruit of Islam. Now that's a winning combination.

In spite of rumors to the contrary, I am alive. I'm just very busy at the moment. Regular posting will resume soon... I hope.

Fall semester of 2L is officially in the record books. I am now half a lawyer. Well, I will be when I get my grades. In honor of this blessed occasion and the recent rebirth in my comments on Kelo happenings, how about something funny? From the good people at Bureaucrash...
The 5 vote majority in Kelo as grim reapers. Beautiful. But it's all in good fun. I'm sure that Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer see the humor in being portrayed as harbingers of death and destruction. Unfortunately, many of us don't see the humor in the holding of that case.

I love this woman.

"Anybody who doesn't appreciate what America has done and President Bush, let them go to hell"

-Betty Dawisha, Iraqi Citizen, voter

I miss living in the dorms.

There's a substantive reason why I posted this, honestly. Look at the response of the University...

"We certainly regret this has happened; it's not something the university condones and we are very disappointed in these students, but rooms in residence are considered to be students' homes, and what goes on between consenting adults in the privacy of their homes is considered to be their business," said Susan Grindrod, Western's vice-president of housing.

"What's different in this case is that these pictures are going all over the world. With the Internet and personal blogs, pictures can be circulated very quickly, and I'm not sure how we would regulate students' blogs and websites even if we wanted to," said Grindrod.

Maybe you could suspend them from school for posting things that you don't like. I hear that's a popular way to deal with unseemly blog material.

Can you imagine Marquette trying to deal with something like this? Even worse, imagine the Dental School administration dealing with this. Their heads would explode! If being a little buzzed after a champagne brunch is considered binge drinking, then this would be Sodom and Gomorrah Part 2.

And yes, the pictures are online. In order to give a truly fair and balanced view in this post, I checked them out. I've got one thing to say: giggity.

An article in The Hill discusses the lack of support from Senate Republicans for Judge Alito. They are simply not doing anything to defend him for the organized attacks from the Senate Democrats and the interest groups. Senator Cornyn seems to be the only one doing any real heavy lifting.

Although Cornyn has issued regular press releases challenging liberal charges and Specter has defended Alito for failing to recuse himself from a case involving an investment firm to which he was connected, other Republicans have been mostly silent.

"Why only Cornyn?"” asked a strategist for a conservative group allied with the White House in the court fight. "[The others] are back in their home states taking time off."”

This is why I can't stand most of the Senate Republicans. This is an important moment. Some would say that besides going to war, presidential nominations to the Supreme Court are the most important decisions that they can make. Judge Alito's impact on the Court and the country will last for decades. Yet the Senate Republicans are sitting back while Alito's record is distorted day after day in the press. All it takes are a few of the more spineless Senate Republicans to get cold feet and Alito will be filibustered. So how about we get off our butts and do our freaking jobs for once, so I can get my friggin Supreme Court. Dammit.

I recently added a link to Cato Unbound to the right hand side of the page. Instead of just creating a blog, the Cato Institute has done something a bit different. Cato Unbound is blog-like, but more like an opinion magazine than a pure blog. For example, James Buchanan wrote an article outlining three Constitutional Amendments that he would support. Then, a series of responses are added periodically, analyzing and critiquing the original article. It reminds me of the Becker-Posner blog because of its depth (and slower pace as far as the updates go). The current discussion about amendments is incredibly interesting if you're into that sort of thing (and I am). I particularly enjoyed Judge Alex Kozinski's reply essay, especially the following part...

But if we do want to shake things up a bit, if we do want to cut down on the power and scope of the federal government, if we do want to make a radical-yet somewhat predictable-—change in the way we operate as a nation, we can accomplish this by a single amendment, comprised of only 15 words: "The sixteenth article of amendment to the Constitution of the United States is hereby repealed."”

I hope to see the day, Your Honor. I hope to see the day.

Ed Whelan is really earning his keep at National Review Online. He has another great article about Judge Alito's record and those who wish to distort it. I really have to wonder what would have happened to Judge Bork if the internet had been around during his confirmation hearings.

Governor Schwarzenegger has denied clemency to Stanley "Tookie" Williams.

Concurring Opinions has a post about some of the plans to redesign the National Mall in Washington, DC. One of the plans would include a new Supreme Court building in East Potomac Park, near the Jefferson Memorial. Dan Solove of Concurring Opinions isn't thrilled about this, and neither am I. In spite of the occasionally falling chunk of rock, the Supreme Court building is incredible. Even before I got into this law thing, I loved that building. It's tucked behind the Capitol, not really on display, but I think that fits the Court well. I don't think that the current Justices want to be the center of attention, sitting on their own island. Justice Island is a cool name though...

Prof. McAdams recently made a post about Stanley "Tookie" Williams, death row inmate and founder of the Crips. The CA Supreme Court refused to grant him clemency, so now Williams' only hope is Governor Schwarzenegger. Death penalty opponents and Tookie aficionados have been petitioning the Governor to commute his death sentence, citing Williams' anti-gang books and efforts to steer kids away from crime. There are many aspects of this case that I find interesting.

First, let me make something clear. This post is not about the pros and cons of the death penalty. Those arguments are so old that I can probably argue both sides' talking points from memory with great ease. This post is about one case, and only one case.

Prof. McAdams points out the Hollywood-types who have attached themselves to Tookie's cause. I've always wondered about this. Whether it's Tookie or Mumia or Jack Henry Abbott, celebrities seem to be ready to champion the cause of convicted criminals. My memory may be failing me, but I don't remember many of these stars consoling the families of the victims. Remember the victims? You know, the people that Tookie killed.
Here is what Tookie Williams did. The links on this page are the crime scene photos of his victims. These are extremely graphic, but I think that people should see them. It's one thing to talk about this case in the abstract, it's another to really take a look at what happened.

Tookie maintains his innocence to this day. His last appeal to the CA Supreme Court claimed yet again that he was innocent. From the article...

In the defense request for a stay of execution, attorney Verna Wefald had argued that Los Angeles County prosecutors failed to disclose at trial that witness Alfred Coward was not a U.S. citizen and that he had a violent criminal history. Coward is now in prison in Canada for the murder of a man during a robbery.

"All of the witnesses who implicated Williams were criminals who were given significant incentives to testify against him and ongoing benefits for their testimony," Wefald wrote.

The people who testified against him were criminals. Color me shocked. You mean to tell me that the founder of the Crips hung out with some shady individuals?! No way. This is common at a lot of criminal trials. Your witnesses are not going to be Eagle Scouts. That's just the way that these things are.

For a man who has supposedly made a radical transformation in prison, rejecting the lawlessness of his past, it seems a little strange that he would try so hard to shirk his responsibility. I would be much more likely to believe Williams' claims of rehabilitation if they weren't so opportunistic. Pleading not guilty didn't work? Appeals didn't work? Try renouncing your past. That might work.

Speaking of opportunism, what about Tookie's planned jailbreak? Here are a few interesting parts...

According to Williams' escape plan, two people from the outside would assist in the plan. (TT 2400). These two people, who would be armed, would disarm and kill the first deputy to exit the bus. (TT 2400). Stanley Williams would then murder Alfred Coward ("Blackie") so as to eliminate the witness against him. Williams would also murder the other deputy on the bus. (TT 2400-2401). Lastly, Williams planned on blowing up the bus and its occupants with dynamite, in order to prevent the authorities from quickly discovering who had escaped. (TT 2403).

Sounds like the plan of an innocent man, doesn't it? I count 2 explicit murders by Tookie himself and 1 by his associates. Add the unknown number of other inmates that would be on the bus when he blew it up and that brings the Tookie body count well into double digits.

Here is the conclusion that I've come to after looking at all of this. Williams is doing anything he can to stay alive. Anything. He killed Albert Owens, Yen-I Yang, Tsai-Shai Yang, and Yee-Chen Lin, and he got caught. He was found guilty (and threatened the lives of the jurors), and then hatched a plan to shoot his way to freedom. His plan didn't happen, so he was stuck in prison. All the while, he still ran the Crips from prison. He personally beat a number of guards and inmates, earning him 6 years in solitary. But then Williams realized that he was stuck. The appeals weren't working and solitary was no fun. He had no options left, so he went for the emotional plea. He cleaned up his act and became a kinder, gentler prisoner. He started writing books to keep kids away from gangs and preached against crime. Strangely enough, he still accepted money from the Crips. I don't think they earned that through bake sales. He has also refused to give police any information on the internal structure of the Crips cause he has "no interest in being a snitch." Boy, he sure is helping where he can with that gang problem, huh? Everything that he has done has been self-serving.

What is Governor Schwarzenegger going to do? I have no idea. I certainly don't envy him right now. He's going to catch hell from people either way. His decision and the reaction to it will be interesting to watch.

EDIT: The link to the pictures of the victims appears to be down right now. I don't know if this is temporary or permanent. I hope it's temporary because it is a powerful dose of reality.

EDIT 2: This blog has the pictures posted. Again, a warning. These pictures are extremely graphic.

Prof Althouse has a post explaining why she thinks cameras should be in the Supreme Court during oral arguments. I've resisted this in the past. I've deferred to the Justices on this issue, since they're the ones that have to live with it. Justice Souter said something to the effect of "over my dead body." There seems like there is some resistance. I'm also concerned about grandstanding by some of the lawyers during arguments. While I favor transparent government, I can't honestly say that the positives of the cameras outweigh the negatives. I don't think cameras in the House and Senate did much good. Our members of Congress have taken grandstanding to new, incredible heights.

Prof. Althouse makes some good points though. This especially...

The Justices have life tenure, and they know how to use it. We just saw 11 years pass without a retirement. Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court. It has become the norm for Justices to hold their seats as they pass into old age and severe illness. With the support of four gloriously able and energetic law clerks and the silence of the other Justices, no slip in a Justice's ability ever shows in his writing. But the Justices do need to take their seats on the bench for oral argument, and it is here that the public has the chance to judge them.

In general, Justices do not like to retire. Justice Douglas was a mess at the end of his time on the Court. There is no way he would've gotten away with staying on that long if a television audience saw what bad shape he was in then. Cameras may be a good check on that.

She also cites the biggest reason I would be in favor of cameras...

And I want to watch the arguments on television too.

I really want to see oral argument sometime. I hope to make a trip to DC in the near future and plan on getting in line bright and early, hoping for a seat in the gallery. Just seeing it would be cool.

Prof. Althouse also points out...

With cameras, Justice Scalia would win new fans, and "The Daily Show" would wring laughs from Justice Thomas's silent face. The read is inaccurate.

It would be nice for more people to actually know who the Supreme Court Justices are. I think that a member of the general public could name 3 or 4 of them. That's just a guess. I think Roberts would be easy since he's so new, everyone seems to know O'Connor, and Thomas is pretty famous from his confirmation hearings. Throw in the odd person who knows Scalia ("you know, that funny guy") or Ginsburg ("the other woman") and you get 4. Maybe I'll do an informal poll the next time I'm out somewhere...

I usually despise awards like this. They remind me too much of award shows, which I think are self-congratulatory back slapping. But I'm going to be hypocritical and pimp the Best Law Blog category. Bloggers are usually not rich nor famous, so I think a little recognition every so often isn't a bad thing. The list of candidates is quite strong, and it took me a while to figure out who to give my vote. I won't say who I voted for, but the blog is linked on the right.

How many stations does Milwaukee have playing non-stop Christmas tunes now? Are we going just a little overboard? Honestly, I don't like most of the Christmas music being played on the radio. It's boring, repetitive, and stale. You can only hear "Jingle Bell Rock" so many times before you fly into a blind rage. I'm not a total ogre. I like Christmas, but I have to make an effort to keep some better music playing.

You can expect to hear the following Christmas songs in the Eminent Domain family household...

The Pogues - Fairytale of New York (the greatest Christmas song of all time)
The Ramones - Merry Christmas (I Don't Want to Fight Tonight)
The Misfits - Blue Christmas
The Kinks - Father Christmas
Tom Waits - Christmas Card from a Hooker in Minneapolis
No Doubt - Oi to the World
Jose Feliciano - Feliz Navidad (traditional, but I still like it)
Jimmy Buffett - Christmas in the Caribbean
Lynyrd Skynyrd - Santa's Messin' with the Kid
Cheap Trick - Come on Christmas
Radiohead - Winter Wonderland
Billy Idol - Yellin' at the Christmas Tree
Elvis Presely - White Christmas (album)
Chris Isaak - Christmas (album)

A little untraditional? Sure. But I'm pretty sick of Bing Crosby and Burl Ives by about December 4th.

Like a moth to a flame, Clinton finds the cameras and the microphones. This time he's talking about Kyoto and blasting President Bush about it. Let's examine this a bit. When has the Kyoto Protocol ever crossed the desk of President Bush? Never. Why not? Because in its present form, the Kyoto Protocol was unanimously rejected by the Senate during Clinton's presidency. Yes, unanimously rejected. That's Republicans and Democrats. Why? Because the treaty is flawed and unfair. The treaty exempted "developing" nations from the CO2 reduction plan. China and India are included under the category of developing nations. In case you haven't noticed, those two countries are experiencing booming economic growth and industrialization. About 80% of China's electricity comes from coal-fired power plants. They have plans to build hundreds more to keep up with their ever-growing power needs. That's a lot of CO2. That's a lot of CO2 that Kyoto would not regulate.

Kyoto is bad for another reason. According to my pro-industry, right wing source Nature, the effect of Kyoto would be to reduce warming by .02 degrees C by 2050 with Russia signed on. Even the most generous models don't estimate a reduction greater than .15 C. Nature 22 (October 2003). That's it. My thermometer doesn't even register hundredths of degrees.

I know what people will say. "But Kyoto is just a first step." Isn't the goal to stop global warming? If Kyoto won't do that, why enact it? I don't see a single reason for the US to agree to Kyoto as written other than some self-flagellating, Western guilt.

Clinton makes the following claim...

In fact, cleaner technology "would strengthen, not weaken our economy," said Clinton, "... in America, there's no telling how many jobs we could create."

He spelt out a long list of things that could be done, including improving energy efficiency in US power plants, cars and buildings, switching to solar, wind and biofuels and even simple initiatives for ordinary citizens, such as using high-efficiency lightbulbs.

That's a wonderful sound bite, but let's see some hard numbers and real plans. Prove to me that our economy would be stronger and better with solar and wind power. Prove to me that we can maintain and grow our economy on these alternative energy sources. More of my evil corporate stooges, this time the ones at Science, studied the feasibility of doing that and reducing CO2...

Energy sources that can produce 100 to 300% of present world power consumption without greenhouse emissions do not exist.

Science 298 (Nov. 1, 2002). Does Clinton want us to ignore this? Does he want us to convert to solar and wind, then institute large scale power rationing?

That is what I am focusing on: what are the costs involved and what are the benefits that we will receive. In Environmental Law, we read the Benzene case (Industrial Union Dept., AFL-CIO v American Petroleum Institute). Here, OSHA issued an emergency temporary standard of 1 ppm to protect workers from the dangers of benzene exposure. Writing for the plurality, Justice Stevens illustrates that OSHA never showed that a level of 1 ppm would be better than 10 ppm (the minimum level that all of the apt benzene studies used). The cost of the regulations was astronomical. Twenty billion dollars for every year of life saved. One year of life is not worth twenty billion dollars. This is what happens when you take the position that "we must do something" regardless of whether the something is prudent.

I am a huge advocate of nuclear power. I have never understood the hate directed at it. The hysteria caused by Chernobyl (which happened because of the horrible safety measures taken by the Soviets, no nuke plant has ever/will ever be built in the US like that) and Three Mile Island (which was about as dangerous as a chest X-Ray) has pounced upon by a lot of people. Environmentalists helped lead the battle. Oddly enough, there is a segment of the modern environmentalist community that is now very pro-nuclear power. They see it as a clean, cheap way to produce large amounts of energy.

Check out pebble bed reactors. Look at how advanced this technology is. Nuclear power is used widely in Europe, and aren't we Americans always being told how we should be more like those enlightened Europeans? The only thing we have to do is put the waste somewhere and monitor it. Big deal. Compared to burning coal and oil, I think that's a much better situation. Nuclear power can also serve as the spinning reserve necessary to give Clinton his beloved windmills. Strange that he glossed over that little issue of intermittency that wind and solar power have...

There you have it, environmental policy from the view of a cost-benefit loving future lawyer. Feel free to assail me on the comments section, Nick.

From Senator Cornyn's office via Confirm Them...

Twas one month before the hearings, and all through the city
Not many Democrats were waiting, not even some on the Committee

The hard left was already distorting his rulings
Why wait for the hearings if you oppose all the President's doings?

Some Senators asked for privileged documents, no exception
So much for the "so-called" right to privacy protection.

From strip searches to abortion, "“he'’s an extremist!"” they wailed
But we've heard it before-against Judge Roberts, it failed.

Of course the attacks will not turn the public
"Confirm him" they say, we want independent courts in our republic!

Ah, humor.

How about a little light-hearted legal news... Shaq's a cop now. That's right, the Miami Heat center is a sworn officer of the law. He's only a reserve officer but as the article points out...

The 7-foot-1 player will be able to carry a gun, wear a badge and make arrests, but with his celebrity status he most likely will not walk a beat or go undercover.

Yeah, I don't think the undercover work would be such a hot idea. First, he's a recognizable celebrity. Second, I severely doubt his acting abilities after seeing Blue Chips. It's been years since I've seen it, but I remember that it was a horrible film. It's shocking to think that anything starring Ed "Al Bundy" O'Neil could be bad, but even he couldn't save this train wreck.

The Miami PD is only paying Shaq $1 a year. I guess he really doesn't need to be paid the going wage of a cop. A lot of people may write this off as a guy trying to play cop, but I think it's pretty admirable. He wants to do something positive, he wants to help, and he's not doing this for the media attention. Best of luck, officer.

Last night, I listened to the audio recording of the oral argument for Rumsfeld v FAIR, the case about the Solomon Amendment. I know, I live a wild and exciting life.

Before I start discussing it, I have to make a disclaimer. I have requested (and received) information concerning the Army JAG program. I am considering applying after graduation to become a military lawyer. Have your bias detectors on maximum.

I think that it's pretty clear from the oral argument that the Solomon Amendment is here to stay. At most, FAIR will get Justices Souter and Ginsburg to support them, but I think that's questionable. The Chief, Justice Scalia, and Justice Kennedy seemed to be totally unconvinced of FAIR's position. SG Clement lost Kennedy for a moment at the beginning with one of his arguments, but I think that the Solicitor General just made a slip up.

The Justices did not buy the argument that conduct can become speech simply by asserting some underlying reason for the conduct (as if "meaning" turned conduct into protected speech). Justice Stevens remarked that you can't justify not paying your taxes by say that you don't agree with a war.

If I remember correctly, the Chief was the one who brought up South Dakota v Dole. That case upheld conditioning the receipt of federal highway funds on a state raising its drinking age to 21. I remembered that case from Con Law and thought that the comparison was quite apt. Here, the law schools are in the same position as the states. They don't have any right to the federal funds. Congress can demand that they meet certain conditions, and if they do, then they get the funds. It's all about the Spending Power.

Another interesting aspect of this is the extent of the Spending Power. FAIR is asserting that it does not go this far. Oddly enough, they are also arguing against a sizable amount of civil rights legislation. The feds have used the Spending Power as a tool to support civil rights by cutting off federal funds for those who do not comply. The Court has given Congress a wide berth with spending.

Justice Scalia also brought up the fact that the Solomon Amendment can easily survive judicial review based on the Congressional power to raise armies. That's sort of the trump card here. It's an explicit power of Congress, and the Court defers to them to as far as how they do it.

Hey, I sympathize with FAIR... sort of. But it's very simple. If you do not agree with the policies of the military, refuse the funding. Take a principled stance and accept the financial consequences.

After the Kelo v New London eminent domain decision this summer, there was a huge backlash against eminent domain abuses and the Supreme Court itself. One of the avenues of attack was an attempt to take Justice Souter's farm property to build a hotel. Todd Zywicki at Volokh has a post concerning the developments regarding the Lost Liberty Hotel.

I totally disagreed with Kelo and that trend in the use of eminent domain to take private property and give it to another private party in the guise of a general "public use." When the hotel idea was brought up, I thought it was a funny attempt to grab media attention about the issue. Now, it looks like they are serious. I think this is going a little overboard. I disagree with Justice Souter's vote in the case, but I don't think that it deserves reprisal. Justice Souter was doing his job to the best of his ability. I think he screwed up, but I don't think he should be personally punished for it. It sets a bad precedent. Judges and Justices should be allowed to do their jobs and not worry about popular opinion. That's why we insulated them from facing election.

Plus, we should keep Souter happy. Hopefully, he'll retire soon to that farm. Taking it from him will just anger him and keep him on the Court for years.

That's right. Hell has frozen over. Mark Belling is on his radio show right now, agreeing with the suspension of the dental student. He is pushing the idea that this student couldn't make this statement outside of the internet (like in print), so he shouldn't be able to make it on the internet.

The boys at GOP3 took the time to live blog a MU Student Government meeting concerning the current state of fear on campus regarding free expression. I don't really care much about the student government, because I don't think they mean much. I've never put much stock in the power of student governments. They are a lot like the steering wheels on child car seats. "Look, I'm driving the car with daddy!" Yeah, not so much. Daddy (and the administration) have the real control.

I did find the wording of Resolution 1 and some of the other comments interesting. First, Res 1...

"Whereas: It is recognized that Marquette University, in accordance with its Jesuit values and ideals and in compliance with its Policies and procedures, reserves the right to monitor and censor expression both on and off Marquette's campus"

Followed by...

SENATOR BANKS: Talked with Dean McCarthy. Their view is that when you commit yourself to MU student, you sign onto a contract with a policy and student conduct code, and that they have the right to censor student expression whenever they want since when we are on campus we are theirs and when we a’re off-campus we are a representative of the University. Still, just because they can censor us doesn't mean they should. Brock points out the negative effects that can occur when the University does exercise their right. MUSG wants the University to be prudent in its decisions to curb student expression, given our goal to make the University an open forum for the free exchange of ideas.

You've got to be kidding me. I'd be laughing at this statement if its ramifications weren't so unfunny. When I'm on campus, I am not "yours." I can forward the pertinent language in the Thirteenth Amendment if you're unclear on that. But seriously, that is just a heavy handed, tyrannical point of view. Suddenly, I don't feel very welcome at Marquette. In fact, I feel very unwelcome and uncomfortable.

I don't think that novel little idea has any basis in law. Regardless of the fact that Marquette is a private institution, I have my doubts that their tendrils of influence reach ALL of my activities. Will Marquette have agents waiting for me in Las Vegas, cataloging all of my immoral activities? Will they have people undercover on Milwaukee St, Water St, and Old World Third, gathering evidence of un-Marquette activities? Maybe it's time to call David Horowitz. He's always itching to start trouble. And by start trouble, I mean defend the basic rights of students on campuses.

I know what Marquette's argument is going to be. They have an interest in the public image put forth by their students. They cannot allow renegade students tarnishing the name and reputation of the school. Those acts cause significant harm to Marquette as an institution, since schools recruit and maintain donation levels based on their good name. It's a solid argument. And you know what? It works both ways. I am holding the school and its administration to the same standards. Every time you dish out a Draconian punishment, every time you shut down a fundraiser for the troops, every time you dangle the Warrior name in our faces and then hand us the Gold, you tarnish the name of the school that will be on my degree. You degrade the prestige of my education. You make me, as a member of the Marquette community, look like a clown to the outside world. If you care so much about how Marquette-affiliated parties are behaving, why don't you start caring about how Marquette itself is behaving? The administration is doing a lot more damage to Marquette's reputation than one dental student's blog has done.

This hit piece, smear job, hosing, whatever you wish to call it by Stephen Henderson and Howard Mintz of the Knight Ridder news service has gotten a lot of attention recently. Hugh Hewitt managed to get Stephen Henderson on his radio show and engaged in a masterful cross examination of this totally impartial, unbiased member of the media. On to the highlights!

HH: ...I want to play for you yesterday, Stephen Henderson, the interview you did on C-SPAN, because I've got two pull quotes from it, which I want to ask you about. Here's quote number one from C-SPAN.

"For example, we didn't find a single case in which Judge Alito sided with African-Americans, for example, alleging racial bias, which I think is, again, rather remarkable."

HH: Now Stephen Henderson, in your own article, you cite the case of Curtis Brinson, in which, it's in your own article.

SH: Right.

HH: So that was clearly a wrong statement, correct?

SH: No it wasn't a wrong statement. If you...well, first of all, that quote is taken out of context. If you play the segment right before it, what you'll see is that we were talking about employment discrimination. The host asked me about a segment of the story that discussed employment discrimination. And that's when I said oh, well by the way, he said what do you think about employment discrimination? So then I say, for example, we didn't find a case in which Judge Alito sided with an African-American. It's clearly in the context of employment discrimination that I made that statement.

HH: Okay. Well then, I'll go there. I pulled up from WestLaw...

SH: Yeah.

HH: Goosby V. Johnson and Johnson. A black female sued for discrimination, the district court granted summary judgment for her employer. Judge Alito was part of the panel that reversed, in part.

SH: Part of the panel that reversed...he's not in...he doesn't write.

That's what we would call impeachment through a prior inconsistent statement. That's also what we would call Henderson caught in a lie. He thought that people would just take him at his word and not look at the actual cases. Big mistake. Continuing on...

HH: You said you couldn't find a single case where he...in fact, let me play you the second part of your quote from yesterday.

"We found very few cases, maybe, I think, one or two, in which he sided with a woman in a gender bias case."

HH: Okay, so Goosby V. Johnson is a black female.

SH: Right.

HH: So he rules for an African-American, and he rules for a female.

SH: So you count that as a two-fer. Okay.

HH: No, I'm counting it as a refutation of both of your statements.

SH: Okay, but it's not a refutation. What did we say in the story? We said that all of these were trends, and that none of the trends was absolute, that there were exceptional cases in each one, and in fact, in our article, we go out of our way, in fact, to note the exceptions, because we thought the exceptions were important, that people would want to see in which cases was he violating a trend. Was he contradicting the trend?

The bold part is great. Henderson is presented with the facts inconsistent with his "findings" about Judge Alito's record, then tries to brush it off as a "two-fer." Then he gives some rambling explanation about how the trend he found is still intact. Sure, it's going to remain intact if you totally ignore the cases that don't fit your desired "trend." This is my favorite part...

HH: Steve, this is not fly by...by the way, we're both Wolverines. I teach Constitutional law when I'm not on the radio.

SH: Oh, you're kidding me. Oh...

HH: I graduated from the University of Michigan Law School, so I'm not going to get rolled on this one.

Henderson had no idea that Hewitt was a law professor. Amazing. He thought he was going on some right wing talking head's show and could confuse him with a bunch of legalese crap. No dice.

I wish I could say I am shocked by all of this, but I'm not. Later in the interview, Henderson tries to say that the Goosby v Johnson and Johnson case doesn't count because Judge Alito didn't write the opinion. Alito voted with the majority... and that doesn't count? That's incredible analysis. I know I'm only a year and a half into this law school thing, but I was under the impression that judges who vote with an opinion agree with it. That's sort of why they join it in the first place. But let's not let logic and facts get in the way of our hit pieces...

EDIT: Former Alito clerk and self-described "registered Democrat who supports progressive causes" Jeffery Wasserstein refutes the Knight Ridder article in this opinion piece. He cites an example...

Another example, which reached a result that would seem contrary to a conservative ideologue, was a case I worked on with Alito (U.S. vs. Kithcart) in which he reversed the conviction of a black male, holding that an all-points-bulletin for "two black men in a black sports car" was insufficient probable cause to arrest the driver of the car. Notwithstanding the driver's guilty plea, Alito reversed, finding that the initial arrest lacked probable cause, stating: "The mere fact that Kithcart is black and the perpetrators had been described as two black males is plainly insufficient."

He also points out the real important measuring stick for Judge Alito as an appeals court judge: did he follow precedent set by the Court...

Given Alito's respect for precedent and stare decisis as demonstrated by actually adhering to precedent for 15 years while on the court of appeals -- even in cases that reached results that would seem incorrect to a conservative -- and the open mind with which I saw him approach cases, labeling Alito an "ideologue" would be unfair and distorts his record on the bench.

It's pretty funny that he would be slammed for actually being consistent in his decisions. I guess some people want judges who are all over the place in their jurisprudence, following precedent when they want but ignoring it whenever they hell they want.

EDIT 2: The Senate Republican Conference has produced the following response to the article.

I was ready Saturday to write a long winded analysis of the unhinged Slate article about then-Assistant Solicitor General Alito's memo concerning the Sixth Circuit's decision on a Tennessee "fleeing felon" statute. Fortunately for my exhausted self, Ed Whelan beat me to it.

Read Whelan's article, then read the Slate article by Emily Bazelon. You'll notice a very big difference in tone and rhetoric. Bazelon implicitly raises charges of racism directed towards the statute and Alito. Whelan points out...

Second, Bazelon finds Alito's memo "striking for what it doesn't say" namely, that in "Memphis and across the country, cops were shooting black suspects at a far higher rate than white ones." As it happens, the Sixth Circuit opinion didn't have anything to say about this either. Nor did the Supreme Court. And for good reason. What possible bearing does this point have on the Fourth Amendment question? Or on the due-process issue?

Bazelon injects the race issue even though it had nothing to do with the legal analysis. Should it have been a Fourteenth Amendment Equal Protection issue? Maybe, but it's not in there. The Sixth Circuit didn't address it, the Supreme Court didn't address it. Where is Bazelon's implicit racism charges for them?

In her dissent in the Supreme Court case, Justice O'Connor adopted Alito's position. Yes, the sainted Justice O'Connor, current angel of the Left, agreed with Alito. But in a verbal maneuver that can only be described as deceitful, Bazelon claims otherwise. Whelan again...

Bazelon transmutes Alito's unresolved stance on the question whether the shooting constituted a seizure into a position that it didn't, as she charges that "none of the justices adopted Alito's position."

The Court's decision in Tennessee v Garner was 6-3. Apparently, "3" is the same as "none of the justices." Your definition of "none" may vary.

This is what I've come to expect from Slate's legal coverage. If you ever want a trip through fantasyland, check out the articles from Emily Bazelon and Dahlia Lithwick. It's partisan legal reporting at its worst. The close of Whelan's article says it best...

An honest debate, instead of lies and distortions, would be refreshing.

There's a month to go before the confirmation hearings. So far, there hasn't been any real traction against Judge Alito's nomination. None of the attacks from PFAW, Slate, Schumer, or Kennedy have stuck. If Alito can get through the next month without any real controversy popping up, he's as good as confirmed.

I'm exhausted from my marathon study sessions and three back to back to back exams. I'm lucky that I can sit up right now. Any posting that I can do is nothing short of a miracle. I do think my Ethics exam went very well, so I'm running on enough adrenaline to pound out a post or two.

The Ayotte v Planned Parenthood oral argument was incredibly interesting. Attorney General Ayotte sounded very nervous. Her voice was quaking for most of her oral argument. Hell, I don't blame her. She's arguing her first case before the Supreme Court, and the case has national attention. If I was in her position, I probably would've been throwing up in the bathroom until Court was in session. When under extreme pressure, my voice has also been known to get a little shaky at times too. I totally empathized with Ayotte.

She made some big slip ups about her office's viewpoint and the text of the law itself, and Justices Souter and Ginsburg went after her. I don't think there is any mystery concerning their viewpoints on the case. SG Clement was his usual self, taking it from the Justices but still giving it back to them. Dalven, the lawyer for Planned Parenthood, focused on one argument: invalidate the law and send it back to the legislature. Tactically, I think this was a good move. Be specific about what you want, make your case, and don't let the Justices trick you into overextending your argument. Unfortunately for her, I think she overextended. She claimed that there "wasn't a minute to lose" when the doctor has to decide if an emergency abortion is needed. Justice Scalia wondered if that dire situation prevented the doctor from gloving up. After all, there isn't a minute to lose, right?

Beyond the case itself, I thought the oral argument was interesting because of the new Chief Justice. This was the first time that I heard Chief Justice Roberts during oral argument. He questioned Dalven about having the doctors bring a pre-enforcement challenge to the law's Constitutionality concerning the lack of a health exception. The Chief viewed that as an as-applied challenge, not a facial challenge like this suit. Justice Scalia seemed to support this view, while Justices Ginsburg and Stevens thought that the cases would be the name (aside from the doctors' names being substituted for Planned Parenthood's). Prof. Althouse comments on the "Roberts Court Style"...

Roberts seems to have instantly emerged as the dominant voice at oral argument. And he seems to have a way of slamming lawyers in the face with his own clearly stated opinion. Tell me why this is wrong, right now, or forget about it. I hope to see much clearer written opinions from the rejuvenated Court too.

There's no foreplay in the Roberts Court.

I expect this to be a close case. I also expect Justice O'Connor to be retired before the decision comes down. My third expectation is that this case will be held over for reargument until next term.

Eugene Volokh of The Volokh Conspiracy has picked up on what is now known as Dental-gate. Prof. Volokh states...

Marquette is a private university, and is thus not bound by the First Amendment. Moreover, this case doesn't seem to involve punishment of students for their ideological viewpoints, and thus doesn't pose the most serious academic freedom problems. Nonetheless, it seems to me that Marquette should be condemned for this: Students, it seems to me, must be entitled to criticize the quality of their professors and the student body, even when they do it in childish terms; moreover, restricting speech under standards as vague as "unprofessional" risks deterring a good deal of speech, including more serious criticisms.

I think the bold text is an important point. Serious, legitimate criticism of university policies, administrators, and professors is likely to be curbed if this suspension stands. When an incident comes up that isn't just "I think this professor is bad," will a student come forward with criticism? Or will they fear possible reprisal, even if the criticism is valid and appropriate?

EDIT: MULS Prof. Hurt over at Conglomerate has an interesting legal take on this. She argues that the student is an agent of the university because of his participation in their clinic. Therefore, he has a duty of loyalty (that's part of agency) and his comments are a breach of that duty.

Prof. Volokh responds, arguing that Prof. Hurt's argument applies in the business world, but not the academic world. He argues that there is a large duty of loyalty to the truth. If his university is doing something wrong, he believes that he is duty bound to speak out. He also states that the Dental School's rationale and Prof. Hurt's rationale would stifle "legitimate" criticism (something beyond calling professors and fellow students dumb).

I guess I picked the right time to attend Marquette. Nothing but controversy emerges from this school.

Prof. Hurt makes a very important point at the end of her post...

In addition, I hope that any future professional students know at the outset what the expectations are concerning blogging.

As a current professional student, I would like to know the standards too. This is assuming that the school adopts standards for blogging.

Honestly, I don't think that I've violated any ethical rules on ED. I don't think I've ever criticized the law school (I haven't had a real reason; I honestly like it here). I don't criticize my fellow students. I have used a few four letter words in my time. I have also talked about drinking, as Prof. McAdams pointed out in his original post. Unless professional students are required to abstain from alcohol or never acknowledge that they're had a drink, I don't think that is an ethical issue at all.

I'm very interested to see what happens Friday...

EDIT 2: I've been keeping up with the comments on the Volokh post, and a commenter named DK made a great point...

IMHO, what is really ironic in this situation is that Marquette is harming its own reputation by punishing the student, just turning some minor criticism no one outside of the dental school would have read into an incident with national publicity.

I consider myself pretty knowledgeable about the existence of blogs here at Marquette. Until the post by Prof. McAdams, I had no idea that this dental student's blog even existed. I bet that only a handful of people read it regularly. Through their heavy handed punishment, the administration has turned this into a national issue. Another PR blunder...

In spite of the fact that I am near tears after my Federal Income Tax exam, I'd like to direct everyone's attention to a petition born of the usually unlikely union of Prof. McAdams and the 1832 blog. The petition reads as follows...

Protect MU Students Free Speech Rights
Freedom of expression and the exchange of ideas are essential in an academic setting and should be encouraged rather than punished. The signers of the petition demand that the student who was suspended for expressing his personal beliefs online in a form of a personal blog be fully reinstated to the University and that all disciplinary actions taken against him be overturned. Specifically, the signers of petition believe that the decision by the Marquette University Faculty/Student Conduct Board should be overturned on the following grounds:

Whereas: The Dental School Faculty/Student Conduct Board denied the student a fair hearing

Whereas: "Whereas: The University grossly infringed on his right to freedom of speech by using statements made to a close group of friends on his personal blog against him"

Whereas: The punishment was overly excessive and can be shown to be more than arbitrary and capricious

Whereas: The decision, If upheld, would set a disastrous precedent for student free speech rights and would give the University a seemingly limitless reach into students lives.

Please join Marquette College Democrats, and the blogs of 1832 and The Warrior Blog, and others by signing this petition with your @MU email address if you have one.

I signed it, and everyone else at Marquette should too. The treatment of this dental student is outrageous. It is another black mark on Marquette's record. What message does this send to prospective students? "Come to Marquette University, home of thin-skinned administrators and repression of speech!" Policies and practices like that will only drive students away. It's amazing how much academia has changed. Colleges and universities used to be places of intellectual debate and discussion that encouraged the expression. Now, they have become some of the most fascist organizations in society. I'll be happy when I graduate.

Now if you'll excuse me, I have an Ethics exam tomorrow and I would like to be prepared. It can't be any worse than Tax was. I feel like I was just raped by a grizzly bear...

DISCLAIMER: The previous statement was not meant to be critical of the fairness of the test, the professor, the class itself, the authors of the Internal Revenue Code, the makers of the pen I used on the exam, Marquette University Law School or its policies, Marquette University or its policies, Marquette University Dental School or its policies, Father Jacques Marquette himself, or anyone else who could take offense and get me suspended from school. Thank you.

If anyone needs me, I'm busy sucking on the business end of a shotgun.

Right now, I should be continuing my cramming for my Evidence final (tomorrow morning at 8:30) or crying or both, but I had to make a post. Prof. McAdams has a post about a Marquette Dental School student whose blog got him in deep trouble. Prof. McAdams states...

...Marquette Dental School Associate Dean for Academic Affairs Denis Lynch learned of a student blog that made one negative comment about a professor (who was not named), a negative comment about 25% of the year-two dental school class (with nobody named) and talked about going out on a few occasions and drinking too much.

The Dean brought down the thunder on this student for these mortal sins. The punishment for the student is as follows...

He offered the student the option of signing "“an admission of guilt"” and accepting a punishment that included probation for the rest of the student's Marquette career, making a public apology to his dental school class, and making an appointment with the Director of the Marquette University Counseling Center "to assess both your alcohol abuse and the underlying basis of your remarks posted on your blog site."”

I never knew that the dental students knew how to party.

The student referred to an unnamed professor as a "cockmaster" and called a large portion of his classmates stupid. The drinking part is the best. Prof. McAdams quotes the blog...

The blog entries do contain several descriptions that sound like binge drinking, although one of the cases was a "“Champaign brunch"” which the Dental School gave for students on the Dean's List. The student said he left "full and buzzin' a little bit from the booze."

What's the issue here? Hell, the Dean provided the booze! Let's compare that to the law school. Next week, the Student Bar Association (excellent word choice) is buying kegs of beer for the 1Ls to celebrate the end of their exams. They're all 21, they're adults in the eyes of the law, and they've all survived undergrad. They know how to drink. If a 1L wants to write a post about the free beer that he enjoyed at the event, what's the problem? There better not be a problem, because I made one of those posts last May.

Under the topic of "Binge Drinking" in Prof. McAdams' post, I get linked. Shocking, huh? The post linked was about my cousin's wedding in Madison. While Prof. McAdams quotes me as saying that I was going to get "hammered," technically I said "shit hammered." It's a distinction and a difference in my book. I also alluded to getting "tanked." You know what? I did. Nick can back me up on this in the comments section. He's a witness; he saw me after the reception. That was a part of my personal life. I was not there as a representative of the law school. I did nothing illegal or unethical. By comparison, I don't think that the dental student did anything wrong either.

For the record, I have never engaged in binge drinking according to the following definition quoted by Prof. McAdams...

Binge drinking describes an extended period of time (typically at least two days) during which a time a person repeatedly becomes intoxicated and gives up his or her usual activities and obligations in order to become intoxicated. It is the combination of prolonged use and the giving up of usual activities that forms the core of the clinical definition of binge drinking.

Two days?! Who's got a flexible enough schedule for two straight days of any one activity? All kidding aside, at that point, you've got some mental issues to be addressing. However, the dental student in question didn't even approach this level of drinking. Saying that he was a binge drinker is just absurd.

Prof. McAdams also posted the final sentence that the student received...

1. He was suspended for Dental School immediately, and would only be readmitted in the Fall of 2006, at which point he would have to complete the entire second year. In other words, a semester of academic work and a year of the students life would be thrown away.
2. He must forfeit a prestigious scholarship he had won.
3. He must make a public apology to his Dental School class. It is specified that "That apology must explicitly state your contrition for the crude, demeaning and unprofessional remarks posted by you on your blog site and an admission that you violated the School of Dentistry'’s Code of Ethics and Professional Conduct, specifically Section IV, Subsection E and the related Marquette University Standards of Conduct."

Total overkill.

Prof. McAdams characterizes this for what it is...

a precipitous and emotional reaction from University administrators led to a punishment that, if it stands, will ruin a student'’s career.

This is nothing but an administration going too far in punishing a minor problem.

So, how does this affect me? It doesn't. The title of the post was a hook to draw you into reading all of this. I know of at least 4 law student bloggers. I don't know of any instance where the law school administration has taken issue with the contents of their blogs or even contacted them at all. Either they don't know about us or they don't care about us. Either way, it's going to be business as usual here at Eminent Domain.