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Saturday, December 25, 2004

Merry Christmas!
Archimedes Famously Said, "Give me a place to stand, and I can move the earth." It seems that the same principle of physics also applies to tipping over trucks, as this series of photographs dramatically illustrates. (Hat tip: The Right Coast)

  UPDATE: Several readers point out that the last of the pictures is a fake. The invaluable Snopes.com has the real story. Fortunately, I think the principle of physics remains valid.
Copies of Your Credit Report: The Electronic Privacy Information Center has published a list of consumer privacy tips. Among those on the list: request a free copy of your credit report.
All Americans are now entitled to a free credit report from each of the three nationwide credit reporting agencies, Experian, Equifax, and Trans Union. You can engage in a free form of credit monitoring by requesting one of your three reports every four months. By staggering your request, you can check for errors regularly and identify potential problems in your credit report before you lose out on a loan or home purchase. Currently, these reports are available to residents of most western states. By September 2005, all Americans will have free access to their credit report.
You can get more information, as well as a link to the page to request a report, from this site.

Friday, December 24, 2004

Blogging About Professors: Should students feel free to blog about what their professors say in class? How about out of class? Jeff Rosen's recent New York Times article raised the question, and it has led to some interesting discussion in the blogosphere. See Will Baude's take on the issue here, and Michael Froomkin's here.

  I have mixed views on this topic, but want to emphasize an important point touched on by Will and Michael: If you are a student and you blog about a professor, you should always assume that the professor will read the post and will know who you are. Even if you blog under a pseudonym and don't refer to the professor by name, you're probably leaving enough information behind to identify the professor and yourself. Even if you keep your own identity secret, there aren't that many professors out there: particularly critical or juicy posts are likely to lead to someone recognizing the professor and tipping off him or her to the blog. The professor may then take some effort to figure out who you are. You may never know about it, either: I know professors who regularly read their students' discussions of class on their blogs, and don't want the students to know it.

  Of course, this doesn't mean that students should never blog about professors. But realize that openness cuts both ways: if you blog about them, the chances are pretty good they are going to read it.

Thursday, December 23, 2004

Cynicism and the Facts:

A reader writes, apropos my recent post on parody and fair use,

Dear Mr. Copyright Expert,

So Ghettopoly loses while "The Wind Done Gone" prevails.

Is there a principle at work here other than measuring your revulsion and working backwards to get the desired result?

I can see why people are sometimes cynical about judges' decisionmaking, but it's good to check the facts to see whether they bear out the cynicism. And in fact, the leading modern parody cases don't seem to support the cynical view. In Campbell v. Acuff-Rose (1994), the leading Supreme Court case on the subject, the Justices basically accepted a fair use defense by the rap group 2 Live Crew -- not a very appealling defendant, that created a pretty vulgar parody of Roy Orbison's "Pretty Woman." (Look here for the lyrics, especially Verse 4 and the bridge preceding it.) On the other hand, in the most prominent recent case rejecting the fair use defense, Dr. Seuss Enterprises v. Penguin Books (9th Cir. 1997), involved a comparatively inoffensive Seuss-styled account of the O.J. trial, called "The Cat NOT in the Hat!" Hard to see much "revulsion" at the copyrighted work in the court's opinion there.

What is the principle, then? Here's the key argument from Campbell, which the Dr. Seuss court cited (and the bottom line of which I briefly summarized in my initial post, though without the supporting argument):

For the purposes of copyright law, . . . the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. . . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish) . . . .

Parody [which comments on the original] needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire [which doesn't comment on the original] can stand on its own two feet and so requires justification for the very act of borrowing. . . .

Now as it happens this "parody/satire" distinction can certainly be criticized (though it can also be defended). First, many works, especially humorous ones, are ambiguous; they don't articulate the point of their commentary in so many words, but leave it to the audience to figure things out, and different members of the audience can perceive things differently. Some people might well see any poem that uses Seussian style to discuss accused murderers as poking fun at Seussian conventions of childish innocence. How is a judge or jury to figure that out, especially if the work was aimed at people whose sensibilities and senses of humor are quite different from the judge's or the jurors' sensibilities?

Second, because of this, authors might be deterred from writing material that does implicitly comment on the original, for fear that this will lead to an expensive lawsuit. Third, it does indeed open the door to judges and juries acting based on their own like or dislike for the defendant's work -- vague rules do indeed risk such viewpoint discrimination. And indeed in some pre-Campbell cases, it did seem that some courts improperly counted a work's vulgarity or sexual theme against it.

But to my knowledge there's no reason to think that modern courts are in fact applying the test based on "revulsion" towards the defendant's work. There's much to criticize in the parody/satire distinction, but no reason to just assume the most cynical explanation of how it's been applied.

Judge's Defamation Suit: Notes from the (Legal) Underground has a very interesting post today on the details of a defamation suit filed by a former judge about claims made against him in an election campaign for a seat on the Illinois Supreme Court. Thanks to Howard for the link.

UPDATE: Jim Copland of the Manhattan Institute offers a different take here.
Conservatives and Torture: Publius asks, "Where's the outrage?"

  I have enabled comments.

  UPDATE: New rule on comments: if your comment is not civil and respectful, I am going to delete it. You may have the greatest point in the world, but if you can't figure out how to express it in a calm and respectful way, don't express it here.

  This rule applies retroactively, as well. If you find that a comment of yours was deleted, you are welcome to post the idea again. But please, keep it civil. You may not realize it, but your arguments are much more effective that way.
63 Comments

Wednesday, December 22, 2004

Allen Ginsberg and My Family:

Several readers pointed out to me that Allen Ginsberg had much to say about Moloch — which, to remind people, is what the MS Word spell checker changes Sasha's, Benjamin's, and my last name to. This makes me realize that Allen Ginsberg must have actually been writing about us, but his spell-checker screwed things up. Wow! In any case, here are his views of our clan, from Howl:

Moloch! Solitude! Filth! Ugliness! Ashcans and unob-
   tainable dollars! Children screaming under the
   stairways! Boys sobbing in armies! Old men
   weeping in the parks!
Moloch! Moloch! Nightmare of Moloch! Moloch the
   loveless! Mental Moloch! Moloch the heavy
   judger of men!
Moloch the incomprehensible prison! Moloch the
   crossbone soulless jailhouse and Congress of
   sorrows! Moloch whose buildings are judgment!
   Moloch the vast stone of war! Moloch the stun-
   ned governments!
Moloch whose mind is pure machinery! Moloch whose
   blood is running money! Moloch whose fingers
   are ten armies! Moloch whose breast is a canni-
   bal dynamo! Moloch whose ear is a smoking
   tomb!
Moloch whose eyes are a thousand blind windows!
   Moloch whose skyscrapers stand in the long
   streets like endless Jehovahs! Moloch whose fac-
   tories dream and croak in the fog! Moloch whose
   smokestacks and antennae crown the cities!
Moloch whose love is endless oil and stone! Moloch
   whose soul is electricity and banks! Moloch
   whose poverty is the specter of genius! Moloch
   whose fate is a cloud of sexless hydrogen!
   Moloch whose name is the Mind!
Moloch in whom I sit lonely! Moloch in whom I dream
   Angels! Crazy in Moloch! Cocksucker in
   Moloch! Lacklove and manless in Moloch!
Moloch who entered my soul early! Moloch in whom
   I am a consciousness without a body! Moloch
   who frightened me out of my natural ecstasy!
   Moloch whom I abandon! Wake up in Moloch!
   Light streaming out of the sky!
Moloch! Moloch! Robot apartments! invisible suburbs!
   skeleton treasuries! blind capitals! demonic
   industries! spectral nations! invincible mad
   houses! granite cocks! monstrous bombs!
They broke their backs lifting Moloch to Heaven! Pave-
   ments, trees, radios, tons! lifting the city to
   Heaven which exists and is everywhere about
   us!
Cool.

Related Posts (on one page):

  1. Allen Ginsberg and My Family:
  2. The Spell Checker Knows:
  3. Spell-Checker Rewrites History:
Abrams Report:

I should be on MSNBC's Abrams Report today, debating about the Second Amendment. I'm not sure whether it will be live or taped, but I'll be doing the taping at 3:15 pm Pacific.

The Spell Checker Knows:

In an earlier post, I complained that Microsoft Word's spell-checker suggested that "Volokh" be changed to "Moloch." I wasn't wild about the connection to a spiny-scaled lizard ("Moloch horridus") and especially not to a god to whom the Phoenicians and Canaanites supposedly sacrificed children.

But Seth Goldman points out the deep truth underlying Word's suggestion! A second definition of "Moloch" is:

Something possessing the power to exact severe sacrifice.

Around exam time, my students may well find this to be highly apt.

The Copyright Vampires Will Suck Your Blood,

Stephen Bainbridge. Stephen asks me whether he can get away with posting fan fiction that crosses Elric of Melniboné (created by Michael Moorcock) with Anita Blake (of Laurell Hamilton's Anita Blake, Vampire Hunter series).

I'd counsel against it. The fan fiction would use enough of the Moorcock and Hamilton material -- enough character attributes and allusions -- to constitute "copying" for copyright purposes (even if the only things that they literally copy are the names).

To avoid liability, Stephen would have to argue fair use. But while parody that pokes fun at the original, or otherwise comments on it, is often a fair use (see the 2 Live Crew case, Campbell v. Acuff-Rose), parody that simply uses the original to poke fun at something else is generally not a fair use. Thus, for instance, the Ninth Circuit held that an item about the O.J. trial that borrowed from Dr. Seuss infringed the Seuss copyright, because it commented on O.J. but not on Dr. Seuss. And while one can often argue that any use of someone else's work (especially a humorous use of a serious work) in some way comments on the original, the Ninth Circuit case shows that courts are often skeptical of such arguments. It sounds like Stephen may be trying to mock Hamilton's work, but unless the submitted item comments (in a way that the court will recognize) on both Hamilton and Moorcock, then he's in trouble.

Finally, note that this analysis relies on the fact that Stephen's blog has advertising, and thus would be treated as commercial, which is a big strike against a fair use. Parody and commentary that critique the original may be fair use even if they're commercial; and other uses may be fair use if they're noncommercial. But if a court rejects the parody/commentary argument and the use is commercial, then the fair use claim becomes quite weak.

All this is just a general answer. It's hard to tell for sure if one hasn't seen the actual work, and with fair use it's hard to tell for sure even after one has seen the actual work. Still, I'd warn my colleague off his plan -- at least unless he insists that the submitted fiction pretty clearly mock both Moorcock and Hamilton.

Funny Legal Brief:

Yes, you might think that's an oxymoron, but it really is pretty amusing. See here for an excerpt and a pointer to the PDF file.

Tuesday, December 21, 2004

I Beg Your Pardon: Presidential pardons historically have provided a critical safety valve in the federal criminal justice system. Today, though, that is no longer true.

  Throughout American history, Presidents issued pardons in a measurable chunk of federal criminal cases. (Statistics available here and here.) Back when only a few thousand federal criminal cases were charged each year, Presidents generally exercised their pardon power in hundreds of cases. In the early 19th century, for example, James Monroe pardoned 419 people. In the early 20th century, Woodrow Wilson pardoned 2,480 people. On a percentage basis, pardons have been becoming rarer over time. Even in the 1970s and 1980s, however, presidents have averaged about 400 or 500 pardons per Term. And of course, the federal prison population in absolute terms has gone way up since that time: according to Bureau of Prison statistics, the federal prison population has jumped from 20,000 in 1970 to about 150,000 today.

  Under George W. Bush, however, the pardon process essentially has come to a standstill. The Associated Press reports that the total number of pardons that George W. Bush has granted in his first Term in office is currently 31, jumping all the way from 27 with the addition of 4 new pardons announced yesterday. The only two Presidents who completed a Term in office with fewer pardons than Bush are the first two Presidents — George Washington and John Adams — and that was only because at the time there was no one around to pardon. Further, the four pardons granted yesterday are entirely symbolic. They all involve misdemeanor charges that resulted in probation, and in each case the probation was served and the case closed many years ago — and in some cases many decades ago. (The convictions were obtained in 1969, 1980, 1981, and 1990.) [UPDATE: It turns out that while all 4 crimes were minor and resulted only in probation, the convictions technically were felony convictions, not misdemeanors.]

  Presidential pardons can be politically risky; just ask Bill Clinton about pardoning Marc Rich. But it's the President's job to do the right thing regardless of what the pollsters say. There are currently 150,000 people in federal prisons, with another 50,000 or so on probation. Could it be that none of them deserve Presidential pardons?

  I have enabled comments.
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19 U.S. Soldiers Killed in Mess Hall Attack in Mosul: The New York Times offers an audio/video report here.
Academic Legal Writing

is now available on amazon.com, though they say it takes 1 to 2 weeks for delivery.

If you want personalized copies, follow the instructions here; I have only copy left right now (24 have been bought since I got the box Friday), but the publisher says that 30 more are on their way.

And remember, some people appreciate New Year's gifts as well as Christmas gifts. (I'm not making this up, that's indeed the way we always did it in my family.) And some people appreciate gifts on any day.

Seriously, one thing I mention in the chapter on getting on law review is that people should start preparing several weeks before the competition. So if the competition is in March (as it is at UCLA, for instance), it would be good for a student to have the book well before then.

Original Documents from Leading First Amendment Cases:

A really cool site for First Amendment junkies -- thanks to my former student Matthew Liebman for the pointer. Here's a list of what they have:

. . .

The "Conscription" cartoon in Masses Publishing . . .

The two-sided circular in Schenck . . .

The speech in Debs . . .

The circulars in Abrams . . .

The Left Wing Manifesto in Gitlow . . .

An article used as evidence in Near . . .

Examples of the documents in Herndon [v. Lowry] . . .

Transcript of the phonograph record in Cantwell . . .

The handbills in Valentine . . .

The speech in Terminiello . . .

Accounts of the speech in Feiner . . .

The leaflet in Beauharnais . . .

The advertisement in New York Times Co. v. Sullivan . . .

Photographs of the protest in O'Brien . . .

The letter to the newspaper in Pickering . . .

Examples of gender-segregated want-ads in Pittsburgh Press . . .

Transcript of the monologue in FCC v. Pacifica . . .

Photographs of the display in Lynch v. Donnelly . . .

Page proofs of the student articles in Kuhlmeier . . .

The "ad parody—not to be taken seriously" in Hustler v. Falwell . . .

Pictures of the displays in Allegheny v. ACLU . . .

The newspaper articles in Cohen v. Cowles Media Co. . . .

The city council resolutions and ordinances in Lukumi . . .

The anonymous leaflets in McIntyre . . .

A picture of crosses in the square in Pinette . . .

The school's student-activity-fee policy in Rosenberger . . .

Correspondence and the newspaper article in Boy Scouts v. Dale . . .

Transcript of the intercepted telephone conversation in Bartnicki . . .

Peremptory Challenges and Unanimous Juries: Dirk Olin has an essay in Slate objecting to the practice of allowing peremptory challenges in jury trials. Peremptory challenges allow a lawyer to dismiss a small number of potential jurors from the jury pool without giving a reason. (The word peremptory means "precluding a right to debate;" the dismissals are called peremptory challenges because the opposing attorney normally cannot challenge them.)

  Olin begins by recounting his experience as a dismissed juror in a criminal case in Newark, NJ. Olin had "been called for a case involving two black guys accused of dealing drugs near a school," and the defense attorney exercised a peremptory challenge to get Olin off the jury. Olin, who describes himself as "a 40-something male mutt of Northern European extraction," suggests that his dismissal was an example of "discrimination against middle-aged white men" that should not be allowed:
On occasion, it is likely that peremptories have been exercised by wise and well-intentioned advocates who used their intuition to keep a bigot or conspirator off a panel. But let's recall that England and Canada get along just fine without them. And in the aggregate, the common costs far outweigh the rare benefits. There's enough sub rosa racism in the system as it is. The peremptory challenge's effect is to disguise it, not minimize it. In reality, it's little more than an invitation to judge-approved jury rigging.
  I think Olin is overlooking something important, however. My sense is that peremptory challenges exist in the United States because juries have to be unanimous, at least in most jurisdictions. In a criminal case, every single juror has to agree for the jury to convict or acquit; a single juror can hang a jury and avoid either a conviction or acquittal. When a single juror can control the outcome of a case, it is reasonable to give parties the power to screen out jurors who they see (whether rightly or wrongly) as unrepresentative of the community at large. Peremptories can filter out unrepresentative viewpoints and leave a more accurate picture of core community values and attitudes.

  Of course, it would be ideal if people from all walks of life and all viewpoints could reach unanimous decisions. But part of the thinking behind peremptories is that jurors with unusual viewpoints may cause more harm than good. I'm not sure if I agree with the argument, but it seems plausible: While other jurors may benefit from exposure to the different perspective, the juror with outlier attititudes may also end up keeping the jury from reaching a unanimous verdict.

  In Olin's case, for example, a defense attorney might reasonably conclude that a white male in his 40s who is an editor of a prominent legal magazine would identify with the police much more than would most citizens of Newark. If the case hinged on the credibility of a police officer, which is not unlikely, it's not out of the question that Olin's views would have been outside of the mainstream among prospective jurors. Of course, that doesn't mean Olin wouldn't be a great juror; it's just that he probably isn't a typical member of the jury pool.

  Finally, Olin notes that England and Canada get along just fine without peremptory challenges. That may be true, but the key question is whether these countries require unanimous juries, as well. I couldn't find anything on whether Canada requires unanimous juries, but some quick research confirmed that England hasn't required unanimous juries since the 1960s.

  UPDATE: It seems the Slate article is simply wrong about Canadian practices. Reader Matt Horner points out that Section 634 of the Canadian Criminal Code permits peremptory challenges:
634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.
(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to (a ) twenty peremptory challenges, where the accused is charged with high treason or first degree murder; (b ) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a ), for which the accused may be sentenced to imprisonment for a term exceeding five years; or(c ) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a ) or (b ).
Notably, Canada also requires unanimous jury verdicts.
All or Nothing:

I much appreciated Orin's post criticizing the "Nearly Half in U.S. Say Restrict Muslims" reporting of a recent survey. As Orin pointed out, here's what the survey actually measured, quoting this report:

1) Muslim civic and volunteer organizations should be infiltrated by undercover law enforcement agents to keep watch on their activities and fundraising.

2) U.S. government agencies should profile citizens as potential threats based on being Muslim or having Middle Eastern heritage.

3) Mosques should be closely monitored and surveilled by U.S. law enforcement agencies.

4) All Muslim Americans should be required to register their whereabouts with the federal government.

44% of respondents said yes to at least one of these questions.

To Orin's criticisms, let me add this one: Options 1 through 3 say nothing about under what conditions these procedures are to happen. People can have lots of views on them. Consider, for instance, option 1. Some people might say that all Muslim organizations should be infiltrated. Others might say that most should be. Others might say that the government should infiltrate those that it has some reason to believe are being used as recruiting centers for jihadism (that's my view). Still others might say that the government should never infiltrate any religious groups.

But the question lets people choose either "yes" or "no." So the count of those who would "restrict[] . . . civil liberties of Muslim Americans" would include those who would infiltrate all Muslim organizations, as well as those who would simply reject the extreme opposite position that any religious or political organization must be immune from surveillance. (Plus, of course, it's a judgment call whether one's "civil liberties" include immunity from government infiltration of groups to which one belongs -- there are arguments on both sides, but the Supreme Court has generally held that such infiltration doesn't violate either the First Amendment or the Fourth Amendment.)

The hypothetical proposal in "All Muslim Americans should be required to register their whereabouts with the federal government" would be pretty clearly a restriction on civil liberties; I'd reject it myself, and I share Orin's regret that it polled 29%. But it's also the only option that specifies "all," and that would clearly be unconstitutional.

Related Posts (on one page):

  1. All or Nothing:
  2. What Do 44% of Americans Believe?:

Monday, December 20, 2004

Follow-Up on Gays and "What a Waste":

Reader Kieran Jadiker-Smith writes:

I am a gay man, and, on a few occasions, I've gotten the "what a waste" remark from straight women. I haven't found this offensive; generally it's said in a playful, joking manner, and is not meant all that seriously. I suppose if someone said it with wide-eyed seriousness, I would be a bit annoyed, but I've never encountered it in that context.

For the record, I do find the idea of my having sex with women quite disgusting. But somehow, when someone makes a joke like this, I don't feel compelled to conjure up some graphic and explicit image of heterosexual sex. I take it simply as someone saying, in a humorous way, that she finds me attractive.

It's possible to rationalize indignance at any kidding involving issues of identity, but I don't think it helps in a society where we increasingly expect people who are different from one another to get along and even be friendly with one another. I should also mention, at this point, that I am 20 years old and grew up in two highly diverse, cosmopolitan urban areas (Vancouver, BC and San Francisco) and my friends have always been a mix of races, religions, backgrounds, and, starting in high school, sexual orientations. In general — even in oh-so-PC San Francisco — I've found that people prefer being able to joke about these issues a little bit rather than walk on eggshells, afraid to say anything about them lest they give offense. I came out of the closet when I was 15, and I think the ability to joke about it — up to a point, anyway — helped ease tensions as friends and acquaintances (some of whom had never had a gay friend before!) adjusted to the idea.

This whole discussion — perhaps because it's that time of year — reminds me of an item you ran some time ago about whether Jewish people might take offense at being wished a merry Christmas. I, too, am Jewish. But, like you, I've chosen — sensibly, I think — to interpret "Merry Christmas" as something other than an act of hostility or a subtle suggestion that I should convert to Christianity. I very much doubt than many people — Christian or otherwise — intend it as such. I simply accept it as I think it's offered — as a wish for a happy holiday season, even if I'm not celebrating the holiday to which they specifically refer.

So, too, do I accept "what a waste" as it's intended — a lighthearted, joking compliment. I know this world is full of people who come pre-offended, but I don't think they — or people who cater to them — are really advancing the causes of respect, friendship, comity, civility, or tolerance.

For all the same reasons, I don't see a reason in the world straight men shouldn't adopt the same attitude if they hear the same thing from a gay man. The interpretation of context shouldn't be impaired by one's sexual orientation.

Well put, and I wish more people had this attitude. At the same time, since the purpose of "what a waste" seems to be a compliment, its users should realize that at least with some listeners — though not Mr. Jadiker-Smith — it may not be a very effective compliment.

Related Posts (on one page):

  1. Follow-Up on Gays and "What a Waste":
  2. "What a Waste":
PowerBlogs:

We've been using Chris Lansdown's PowerBlogs service for several months now, and I've been very pleased -- pleased enough that I wanted to pitch it to all of you. The interface has lots of nifty features: tools to help create tables, bulleted lists, and numbered lists, a way to link related posts together, support for hidden text, easy blogroll maintenance, and a bunch of other things. (Of course, it also has all the normal stuff, such as support for comments, delivery of posts by e-mail, RSS feeds, multiple bloggers, customized layout, and more.) The system has been extremely reliable. And the technical support has been excellent. You can find more about the features here, and about the pricing here -- the cost is pretty reasonable, starting at only about $5/month, though it naturally goes up for higher-bandwidth or higher-space blogs. I highly recommend it.

Law School Song Lyrics: The CivPro version of "99 Problems" is fun, but criminal law junkies might be partial to "Twas the Night before Booker" or "Take a Walk on the Blakely Side." I'm partial to the first one myself. Both items are courtesy of Begging the Question's Milbarge.

A VC reader with somewhat different musical tastes than my own, suggests that Jerry Garcia would be no less appropriate on a CrimPro exam than Jay-Z, and offers this bit from "Truckin'":
Sittin' and starin' out of the hotel window.
Got a tip they're gonna kick the door in again
I'd like to get some sleep before I travel,
But if you got a warrant, I guess you're gonna come in.
Naming the Patriot Act:

One argument I occasionally hear from opponents of the Patriot Act is that the Patriot Act was unfairly named. "With a name like Patriot Act," the arguments runs, "How could anyone vote against it? No one wanted to be seen as unpatriotic in the weeks after 9/11." The suggestion seems to be that the Patriot Act's name, or at least the acronym its name creates, unfairly pressured legislators to vote for it.

   There are two significant problems with this argument. The first is that the name was worked out fairly late in the Congressional negotiations over the bill, long after it was clear that the bill would pass. The second problem is that most bills proposed in Congress have a similar feel-good name. The name of a bill is often used to articulate an argument in favor of the bill, not to describe its contents accurately. For example, if someone wants to pass a tax break, the bill might be named the "Empowering the People to Make America Great Act." If someone else wants to do the exact opposite and undo tax breaks, the bill might be named the "Freeing Our Children From The Burdens Of the National Debt Act."

  If you doubt this, go over to Congress's Thomas site and check out the names of some recent bills. I did this a week or two ago; I entered a query using the keyword "law" to keep it as generic as possible. (I don't know how the site chooses to order the bills, but I don't think it matters.) Here are the names of the proposed statutes that popped up first on the list:

(1) State and Local Law Enforcement Discipline, Accountability, and Due Process Act of 2003
(2) Preservation of Federalism in Banking Act
(3) UNITE Act
(4) Law Enforcement Officers Safety Act
(5) JTTF Enhancement Act
(6) Federal Law Enforcement Pay and Benefits Parity Act
(7) End Racial Profiling Act
(8) Handgun Licensing Act
(9) Officer Dale Claxton Bulletproof Police Protective Equipment Act
(10) Equity in Law Enforcement Act
  If politicians felt forced to vote in favor of bills because of their names, then most bills would just have to become law. After all, how can you be against discipline, accountability, and due process? How can you be against safety? How can you be against uniting? How can you be in favor of inequity in law enforcement?

   Of course, I recognize that many politicians felt tremendous pressure to enact some kind of anti-terrorism law in the weeks following 9/11. But that pressure had nothing to do with name of the bill.

Pop Culture & Exams:

On the subject of inserting pop culture references into exams and other academic material, noted libertarian author Tibor Machan, who teaches business ethics at Chapman University, writes:

Although I do not know enough pop culture to reference it routinely, I wish I did. At 65 I need every pedagogical device available to connect with my students. Fortunately, I am cool enough as is but in part it comes from being familiar with their lives through my 20, 25 and 26 year old kids. When one teaches not at the elite places where students have been prepped to be involved since their crib days, it is desirable to find some way to motivate them, to show them the stuff you are teaching is not unrelated to their lives. Ergo, I assume, the pop references.
No doubt this is one reason some professors do it.

Update: Of course, trying to demonstrate one's "hip" quotient can pose risks as well. One professor e-mails this amusing anecdote:
Using pop culture can backfire too though. I gave a multiple choice bonus in an undergrad criminal law mid-term. One of the answers was 50 Cent (the rapper - very hip natch). After the test, one of my students came up and said he liked the reference, but he could tell it was out of my daily experience. Apparently, this highbrow "artist" is 50 Cent - I put 50 Cents. I was too cool by half. 10 minutes watching MTV2 would've saved me a few moments of slight embarrassment. Now I stick to things I know - movies, the Simpsons, and the occasional Monty Python cast of characters for a hypo (but that's mostly just for me I fear).

Cousins Marrying:

My student Patricia Stringel -- who hastens to stress that her interest in this is purely academic -- passes along an interesting bit of trivia: In 19 states, including California, New York, and most of New England (so no Beverly Hillbillies jokes, please), first cousins are apparently perfectly free to marry.

While parent-child, sibling-sibling, and uncle/aunt-niece/nephew marriage and sex seem to be pretty broadly condemned in the U.S., there's much more disagreement on cousin-cousin relationships. Actually, it makes a good deal of sense, but it surprised me: I somehow assumed that cousin-cousin relationships were more broadly banned. (Note: The data is from a site dedicated to legitimizing cousin love, and I haven't checked it myself. I have no reason, however, to doubt its accuracy, since the site purports to provide helpful information for cousins and presumably wouldn't try to deceive them. The site also includes statutory language, which is another good sign, though it says it's only current as of 1999.)

Oh, and the most amusing part is the name of the domain -- "cuddleinternational.com," with the "cuddle" standing for "Cousins United to Defeat Discriminating Laws through Education."

Free to Tell the Truth About People's Past Crimes:

I'm pleased to report that a couple of weeks ago, the California Supreme Court held that people are free to tell the truth about others' past crimes. Thirty years earlier, the court had held, in Briscoe v. Reader's Digest, that when a crime was long enough in the past, it would be an "invasion of privacy" for others to publish information about the supposedly "reformed" criminal, and the criminal could sue for lots of money over that. (California courts had also held that much earlier, in the 1930s, and some other state courts had followed suit.) Now the California Supreme Court has overruled Briscoe, and concluded that recent U.S. Supreme Court decisions protect accurate accounts of public records — such as people's past criminal convictions — despite the passage of time.

To explain why I think this is an excellent decision — and why I'm strongly opposed to some "privacy" and "paid his debt to society" rhetoric in such cases — I'm taking the liberty to exhume an old item of my own, from my 2000 article on Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000):

[In Briscoe, Reader's Digest was held liable for revealing that Briscoe had eleven years earlier been convicted of armed robbery (a robbery that involved his fighting "a gun battle with the local police"). The court acknowledged that the speech, while not related to any particular political controversy, was newsworthy; the public is properly concerned with crime, how it happens, how it's fought, and how it can be avoided. Moreover, revealing the identity of someone "currently charged with the commission of a crime" is itself newsworthy, because "it may legitimately put others on notice that the named individual is suspected of having committed a crime," thus presumably warning them that they may want to be cautious in their dealings with him.

But revealing Briscoe's identity eleven years after his crime, the court said, served no "public purpose" and was not "of legitimate public interest"; there was no "reason whatsoever" for it. The plaintiff was "rehabilitated" and had "paid his debt to society.") "[W]e, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime" by revealing his past. "Ideally, [Briscoe's] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life." And to assist Briscoe in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with Briscoe's plans.

Judges are of course entitled to have their own views about which things "right-thinking members of society" should "recognize" and which they should forget; but it seems to me that under the First Amendment members of society have a constitutional right to think things through in their own ways. And some people do take a view that differs from that of the Briscoe judges: While criminals can change their character, this view asserts, they often don't. Someone who was willing to fight a gun battle with the police eleven years ago may be more willing than the average person to do something bad today, even if he has led a blameless life since then (something that no court can assure us of, since it may be that he has continued acting violently on occasion, but just hasn't yet been caught).

Under this ideology, it's perfectly proper to keep this possibility in mind in one's dealings with the supposedly "reformed" felon. While the government may want to give him a second chance by releasing him from prison, restoring his right to vote and possess firearms, and even erasing its publicly accessible records related to the conviction, his friends, acquaintances, and business associates are entitled to adopt a different attitude. Most presumably wouldn't treat him as a total pariah, but they might use extra caution in dealing with him, especially when it comes to trusting their business welfare or even their physical safety (or that of their children) to his care. And, as Richard Epstein has pointed out, they might use extra caution in dealing with him precisely because he has for the last eleven years hidden this history and denied them the chance to judge him for themselves based on the whole truth about his past. Those who think such concealment is wrong will see it as direct evidence of present bad character (since the concealment was continuing) and not just of past bad character. . . .

[W]hich viewpoint about our neighbors' past crimes is "right-thinking" and which is "wrong-thinking" is the subject of a longstanding moral debate. Surely it is not up to the government to conclude that the latter view is so wrong, that Briscoe's conviction was so "[il]legitimate" a subject for consideration, that the government can suppress speech that undermines its highly controversial policy of forgive-and-forget. I can certainly see why all of us might want to suppress "information about [our] remote and forgotten past[s]" in order "to change . . . others' definitions of [ourselves]." But in a free speech regime, others' definitions of me should primarily be molded by their own judgments, rather than by my using legal coercion to keep them in the dark.

So the new California Supreme Court's decision (Gates v. Discovery Communications, Inc.) is a victory for free speech. And to the extent that it's a defeat for "privacy," it's a defeat for a form of privacy that the law ought not recognize — a putative right to stop people from telling the truth about what you've done.

CrimProf Spotlight: Every Saturday, the CrimProf blog shines their spotlight on a different criminal law professor. The goal is to "to help bring the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the criminal justice professorate to the attention of the broader criminal justice community." This past Saturday, I was in the hot seat; you can read the post here.

Sunday, December 19, 2004

99 Problems - CivPro Version: In response to my posting an excerpt of Jay-Z's "99 Problems," a Harvard law student offers his take on the song, "99 Problems but 12(b)(6) Ain't One." This version was prepared for Professor Heather Gerken's annual Civil Procedure Poetry Slam, but neither me nor the author vouches for its legal accuracy. (CivPro professors take note: Here's more exam material.) Unlike my post below, this is not the radio edit.

If you're havin' claim problems I feel bad for you son
I got 99 problems but 12(b)(6) ain't one

[Verse One]
I got Cravath & Co. on the fact patrol
Foes that wanna make sure my claim is closed
Posner is sayin my pleading's all toast
I'm from HLS stupid what kind of tacks are those?
If you drew up your prose meetin' rule ocho
You think you gotta be more specific? No!
I'm like "check Conley; kiss my whole asshole"
If you don't like my pleadin' you can get turned-over
Got beef with judges if I don't pass them show
They don't permit my 'mendments where ain't undue prejudice WHOA
Them defendents all try 'n relate back
So clients can pin my Doe for real...losers
I don't know what you take me as
or understand the intelligence that Dean Kagan has
I'm from rags to Cambridge, Justice I ain't dumb
I got 99 problems but 12(b)(6) ain't one
Sue me.

[Chorus]
99 Problems but 12(b)(6) ain't one
If you havin claim problems I feel bad for you son
I got 99 problems but 12(b)(6) ain't one
Sue me

[Verse Two]
The year is '94 and in my trunk is raw
In my rear view mirror is the motherfuckin' law
I got two choices y'all pull over the car or
Bounce on the devil; dump due process on the floor
Now i ain't tryin to see no litigation with jake
and 1988's on my side i can fight the case
But I...pull over to the side of the road
And i heard "Son do you know why i'm stoppin you for?"
Cause I'm Vinnie Capasso and I got garbage to throw?
Do I look like a mind reader sir, I don't know
Am I under arrest or should I guess some mo?
"Well you missed your last payment that malomar"
"License and registration and step out of the car"
"Are you aware of your rights? I'm sure a lot of you are"
I ain't steppin out of shit -- 14th amendment you bitch"
"Do you mind if I look round the car a little bit?"
Well you ain't got authorization and you ain't got no facts
And I know my rights so you don't got due process for that
"Aren't you sharp as a tack are you some type of lawyer or something?"
"Or some section 4 kid or somethin?"
Nah I ain't pass the bar but I know a little bit
Enough that you won't illegally replevin my shit
"We'll see how smart you are when your notice comes"
I got 99 problems but 12(b)(6) ain't one
Sue me

[Chorus X2]

[Verse Three]
Now once upon a time not too long ago
A student like myself had to hold a depo
This was not a depo like with a tape recorder
But a depo with my fist and a crowbar
I tried to 27(b) him, get him to talk
Pray for him, cause next time he ain't gonna walk
You know the type, pointin' to 26(b)(3)
Saying "that's privileged bitch, you gettin' nothing from me"
The only thing that's gonna happen I'm gonna get 'em on the stand
Gonna outdo what those retards in In Re Shell Oil can't
And there I go trashin' your privilege again
And if you don't go complyin' I'll 37(d) yo ass
In-house council on the floor cryin' again
Paralegals with they billables rackin' them
Judge goes and tries to bring up Control Group Theory
That's crap, but then I'd get your lower-level employee
All because these fools was harrasin' me
Tryin' to play this boy like he's in section 3
But ain't nothin sweet 'bout how i hold my Mont Blanc
I got 99 problems but this claim ain't one
Sue me

[Chorus X3]

You're crazy for this one Prof. G!
It's your boy
The things law students will do to procrastinate!

OLC Memo on War Powers: The Justice Department's website has posted a copy of the Office of Legal Counsel's September 25, 2001 memo to the White House on the President's war powers post-9/11. From its first paragraph:
[The White House has] asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
Thanks to Howard for the link to the Newsweek story on the memo.
Sunday Song Lyric CrimPro Exam Fact Pattern: Ever notice how some professors who feel compelled to prove their hipness by inserting pop culture references into their exams? One of my professors used characters from Austin Powers for all the names in his exam, while another based the exam on a plotline from "Dawson's Creek," inserting a murder in the show's love triangle.


These efforts are often amusing, and occasionally a bit sad. Nonetheless, they can lighten the stress of taking an exam. In this spirit I offer a selection from "99 Problems" by rapper Jay-Z, recently named President and CEO of Def Jam records:
The year is '94 and my trunk is raw
In my rear view mirror is the ****** ******' law
I got two choices y'all pull over the car or (hmmm)
Bounce on the devil put the pedal to the floor
Now I ain't tryin' to see no highway chase for Jay
Plus I got a few dollars I can fight the case
So I . . . pull over to the side of the road
I heard "Son do you know what I'm stoppin' you for?"
Cause I'm young and I'm black and my hats real low
But do I look like a mind reader sir, I don't know
Am I under arrest or should I guess some mo'?
"Well you was doin fifty-five in a fifty-four
"License and registration and step out of the car
"Are you carryin' a weapon on you I know alot of you are"
I ain't steppin out of **** all my papers legit
"Do you mind if I look round the car a little bit?"
Well my glove compartment is locked so is the trunk and the back
And I know my rights so you gon' need a warrant for that
"Aren't you sharp as a tack, you some type of lawyer or somethin'?
"Or somebody important or somethin'?"
Nah I ain't pass the bar but i know a little bit
Enough that you won't illegally search my ****
"We'll see how smart you are when the K-9 come"
I got 99 Problems but a ***** ain't one.

As to whether Shawn Carter knows the law, I'll defer to the Conspiracy's resident criminal procedure experts.

Related Posts (on one page):

  1. Law School Song Lyrics:
  2. Pop Culture & Exams:
  3. 99 Problems - CivPro Version:
  4. Sunday Song Lyric CrimPro Exam Fact Pattern: