Thursday, March 31, 2005

Technically, My Writing Is Awful
Well, the last week I have been quite ill, but I have also been working very hard on getting something published. One of my smarter friends reviewed an earlier version of my work, and had this classic comment:
your ideas are excellent. i am as impressed as i expected to be. technically, your writing is awful. i say this out of genuine concern. you should take a remedial course.


Update: I tried defending myself by arguing I am just careless, and that my writing is quite acceptable when I bother to review it. My friend had none of this:

i'd like to see some writing you've done that you've checked carefully. then i would be able to know if you really know how to do it.... i don't mean to pick on careless errors. i would never even be able to write a draft that looks like what you did. it also shows a basic ignorance of some simple grammar rules you have never been taught because of inadequate schooling (and a gigantic lack of interest i suspect). but that's your deal....

Big Ouch!

Monday, March 28, 2005

Maybe It Isn't an Old Wives Tale....
I've always teased my mom and my grandmothers that their idea that getting caught in the rain will get you sick is just an old wives tale. Well, I went running in a downpour last night, and sure enough, I feel like crap today.

Sunday, March 27, 2005

$3.00 a Gallon Gas?
Bring it on! Seriously, this may become the reality with the growth of the Chinese economy (not to mention the growth of the Indian economy). Ever-increasing demand and stable supply equals long-term price increases. I've said in the past that we need to create incentives to consume less oil. The best incentive would be a tax on gas, but accompanied with tax cuts in other sectors to keep the government's revenue and the change in overall tax burden neutral.

Wednesday, March 23, 2005

A lot of people have asked me what I think about the Schiavo case. I've been avoiding it in general, but now that the case is now coming to an end (the 11th circuit denied appeal, and you can bet good money that the supremes aren't going to grant cert.), I'll put down a few general thoughts.

1) Everybody's motivation here is suspect
2) We get quite animated when we look at the possiblity of triage in health care, whether it is real or presupposed.
3) The question of who gets to make the choice in deciding to triage is just as difficult, yet important, as the decision of whether triage is acceptable. Should we care about the husband not being able to move on when the parents are more than willing to keep their daughter alive? In different cases, should there be a diminshed standard of tolerance for unlikelihood of recovery when relatives are not willing to pony up the money to pay for life support? Should it matter that the daughter may have told the husband that she would not have wanted to end up like this?
Mickey Kaus pointed me to NRO which had this interview with Professor Robert George dealing in part with this last question.
NRO: As you know, there's some question about what Terri Schiavo's wishes were or would be now. How much should turn on this question?
George: It is the wrong question. It is pointless to ask whether Terri Schiavo had somehow formed a conditional intention to have herself starved to death if eventually she found herself in a brain-damaged condition. ...[snip]
Even if we were to credit Michael Schiavo's account of his conversation with Terri before her injury — which I am not inclined to do — it is a mistake to assume that people can make decisions in advance about whether to have themselves starved to death if they eventually find themselves disabled. That's why living wills have proven to be so often unreliable. One does not know how one will actually feel, or how one will feel about one's life and the prospect of death, or whether one will retain a desire to live despite a mental or physical disability, when one is not actually in that condition and when one is envisaging it from the perspective of more or less robust health.
Consider the case of a beautiful young woman — an actress or fashion model perhaps — who is severely burned in a fire. Prior to actually finding herself in such a condition, she might have supposed — and even said, if the subject had come up in a conversation — that she would rather be dead than live with her face grotesquely disfigured. But no one would be surprised if in the actual event she did not try to kill herself by starvation or some other means, and did not want to die.

4) Regardless of all these points, involving the federal government is a questionable at best decision, and is a further signal of the hypocrisy of some of my republican allies professed concern for state rights. Take a look at the following thoughts by Charles Fried:

Congress's intervention in the Schiavo case is equally mischievous. It demanded that a federal court decide this issue without giving any deference to state law or the previous course of state court proceedings. This is exactly the sort of episodic federal intervention without regard for the integrity of state processes that plagued death penalty cases for years, and that Congress moved to end when it passed the Antiterrorism and Effective Death Penalty Act of 1996. And the real possibility now of the case bouncing back and forth between the federal district court and the federal appeals court, and maybe even back to state court, is just what Congress tried to shut down in death penalty cases.
For years now, Congress has more and more stringently demanded that federal court intervention be limited to cases where the state courts have acted not just technically incorrectly, but with egregious lack of reason. Whatever might be said of the Florida state court proceedings in this case, they certainly have not crossed that line, and indeed probably accord with what state courts all over the country have ordered or permitted for years in these difficult and agonizing cases.
Finally, the law passed by Congress on Monday was an obvious attempt - under the pretense of allowing the determination of federal constitutional rights - to delay the outcome decreed by Florida state law with the hope of making that outcome impossible. That is precisely the worrisome tactic employed with increasingly imaginative stays and orders of re-litigation in a number of federal courts, most noticeably the Court of Appeals for the Ninth Circuit, which covers nine Western states. And it is also precisely the sort of tactic that Congress sought to discipline in the Effective Death Penalty Act.

5) Finally, the mainstream media (MSM) has once again failed us. Some good examples here and here.

Well, those are my general thoughts. Hope you either enjoyed them, or stopped reading them a bit ago.

Monday, March 21, 2005

This Is What Happens When You Slack Too Much
Spring Break. 83 Pages of Fed Courts reading down. 118 pages to go. One Elliptical Machine. 20 Calories per page. 2360 calories to go.

Thankfully, since I don't need to lose the weight, I'll just eat more ice cream.
Report on San Jose Iraq Invasion Anniversary Protests
A friend sends this email:
My friends,
Really not much to report: Pretty small turnout, I'd say, about 500 to 1000 at the Ceasar Chavez Plaza in San Jose for the Anti American, end the war, end the occupation everywhere, protest. Actually most of those present were the hard core, burntout, 50 to 70 year old Caucasoid commie peaceniks from the usual peace and justice brigades. There didn't seem to be a lot of Muslim/Arab folks who are usually younger and more threatening. However, (this is an exaggeration) about every third person seemed to be a Jew...Jews for Justice in Palestine, Jewish Voice for Peace, and even an Israeli Jew with an "End the Occupation "T"shirt. There were six of us good guys: Bob and Lisa Cohen (of course), Marty Wasserman (who has an amazing talent to keep calm and soft-spoken in his verbal encounters with these guys,) Isaac Kight, a young man who's been active in pro-Israel causes on the college campus, Dan Milgram and his two young sons about 5 and 3 years of age, and myself. There was also a guy from a group called "" who stood with us. While the rest of us carried American flags, and signs denouncing terrorism and promoting democracy and liberty in the Middle East, Dan draped himself in the Israeli flag (not real crowd pleasing attire for most of the "end the occupation" protest attendees.) Several of them read our signs and tried to engage us in debate. Nowadays, before I talk to any of these folks, I ask the standard (Ward Churchill) question: "Did America get what it deserved on 9/11?" All the protesters I spoke to answered in the affirmative. Maybe it's just me, but I find it really kind of hard to have a reasoned discussion with such people. (I'm open to suggestions and tutorials about this.) We did encounter an unusual protester who bears a mention. This guy, it turns out, seemed to be one of your old-time, old school, no bones about it, anti-semites. He belonged to none of the organizations or groups at the rally; he was, he proudly claimed, an "independent jew hater." As he walked by us, he stopped and advised us how all jews should be killed. He said he would like to do it himself if he could. I pointed to Dan's two young children and asked if he wanted to kill those children too. "Absolutely," he responded, and then he took a step toward me and asked if I had a problem with that? (Actually I think guys like this are valuable to have around. I was looking for a TV person to get him interviewed; for our puposes, he would have made a great protest rally poster boy. But alas, where are the cameras and reporters when you need them?)

We kept an eye out for media but it wasn't too heavily covered. Lisa gave a long interview, in Spanish, to Channel 14 Spanish Language TV. We also gave an interview to a very nice young woman who was reporting for the San Jose State Univ. newspaper. We got to express our views. And we tried to paint these protesters as out of touch, Ward Churchill type fanatics on their own misguided warpath of hate Americanism. And of course, I suspect, we caused a lot of annoyance to the great humanitarians of this rally who still long for the days of Saddam's torture chambers and rape rooms.
Respectfully submittted,
my impressions only.

Sunday, March 20, 2005

But Night and Day Aren't The Same Length!
Spring has arrived. Confused as to why day and night aren't equal on this day? Here are some reasons why:
A look in your almanac will reveal that day and night are not exactly 12 hours long at the equinox, for two reasons:
First, sunrise and sunset are defined as when the Sun's top edge - not its center - crosses the horizon. Second, Earth's atmosphere distorts the Sun's apparent position slightly when the Sun is very low.

Have these facts on hand when you get the inevitable calls at the equinox from people saying your sunrise and sunset times must be wrong because they are not 12 hours apart.

Saturday, March 19, 2005

Kirkwood Moot Court, Deadlines, and Sleep Deprivation
My week from hell is behind me. I've slept, and am now resting and relaxing.

So I took the MPRE on Saturday. That night, we had the Stanford Public Interest Law Foundation (SPILF) auction, which I went to, and partied at afterwards. I ended up buying a wine tour for 10 people for $30 (in spite of not drinking myself). But I digress.

The main point is starting Sunday morning I had been working nonstop on our moot brief for moot court.

Well, I had been wrestling with the case issue for a long time, but by Sunday, I was ready to put my thoughts down. The problem was I had waited just a little too long. I had to work all day/night Sunday and all day Monday to get my section done. I did not sleep Monday night. On Tuesday, my partner told me midday that he thought stylistically, my writting was not up to snuff. As a result, we spent that afternoon and early evening making corrections. I slept only a few hours that evening. Finally, by Wednesday, we faced a 3 p.m. deadline, but still had much to do.

What did we have left to do? The table of contents and the table of authorities. The former needs no description, the latter is a listing of every case that is cited and the page number that it appears on. In short, you can't do it without having finished writing, as then the page numbers would get screwed up. To top it off, even though there was a 3 p.m. deadline, we had decided we had to finish by 2 p.m. because we fully expected all printers to be occupied during the last hour.

So there I was, sleep deprived, delirious, and stressed out that we were going to miss the deadline all through Wednesday morning. I was such a head case that I am probably lucky my partner didn't slug me. Long story short - we got the brief in in time, but there are errors that we didn't have time to correct. :-(

So now I can relax, and hope to make the lost points up in oral arguments. I'll write more about that later.

Monday, March 14, 2005

Harvard group is offended that speaker urges women to have it all - husband and career. Why are they outraged? Because husband implies that heterosexuality is the norm. Yup.

You cannot please all the people all the time.

Sunday, March 13, 2005

I took the ethics exam requirement to pass the bar yesterday. Ironically enough, the exam took place at a Masonic Temple in San Francisco. Even more ironically, we had people marching in a seemingly Falun Gong type exercise outside. Gotta love California - I'll miss the place.

Tuesday, March 08, 2005

Confession: I Hate the Yankees
No, I am not a Red Sox fan. I am an Indians fan who is sick of listening to New Yorkers speak about all their "home-grown" talent, when they never have to worry about another team signing away one of their players that they want to keep. In this spirit, here is a cool little tongue-in-cheek excerpt of an ESPN piece:

[T]he vast majority of Yankees fans simply cannot fathom the possibility that anyone could hate their team unless he or she also roots for the Red Sox. It's simply beyond their capacity to imagine that there are people all over the world who hate the Yankees for their own very legitimate reasons, and not just because they live in Boston.

The thing is, though, people hate the Yankees everywhere. And I mean everywhere. Brazilian researchers recently discovered an Indian tribe in so remote a part of the Amazon that these natives had never been exposed to western society. Although I cannot absolutely, positively vouch for this, I believe the only words they were able to understand were "Jeter sucks."

For those of you who agree, you might like this website to buy anti-Yankee apparel.
India and the Laffer Curve
Al Jazeera of all publications has a piece on how India is gunning for position as fastest-growing-greatest-potential-developing country.

When the Swedish economist Gunnar Myrdal began his Inquiry Into the Poverty of Nations in 1957, India was at the top of his list. A decade later he produced Asian Drama, a three- volume study of 2284 pages.
He was awarded the Nobel Prize in 1974 in recognition of this contribution. The only problem was that Myrdal came to exactly the wrong conclusion, arguing that India had failed to sufficiently tax its people.......
In the year Myrdal accepted the Nobel Prize, the highest marginal tax rate in India, encountered at an income threshold the equivalent of $25,000, was 97.5%. The rates were similarly confiscatory in Pakistan, Sri Lanka and Bangladesh. The old colonial masters smiled.
The first break from this pernicious advice came in India in 1975, when poverty became severe as the rupee followed the inflation that struck the world economy when the United States left the gold standard in 1971.
India's work force was pushed into the confiscatory tax brackets and the distress was so great that civil disorder ensued. In March 1975, prime minister Indira Gandhi suspended democratic rule and civil liberties, reflecting Myrdal's call for "hard" government...[she used the opportunity -] Not only was the 12.5% surtax removed, but the top rates were cut to 77% from 85% The wealth tax, which had been 8% annually on assets of about $2 million, was slashed to 2.5%, and an urban-property wealth tax, which ranged from 5% to 7% annually, was abolished entirely.
I tell the rest of the story of how revenues boomed so much that Subramaniam came back for a second "whack" at the tax code, cutting the top rate to 66% and slashing income thresholds all the way down the line. Gandhi became popular as the economy expanded and inflation subsided - with the expansion increasing the demand for rupees.
She called elections, thinking she would win easily. But instead of campaigning on the tax reforms, she asked the people of India to approve her suspension of civil liberties.

Unfortunately for India, while Indira Gandhi never got the chance to make substantial reforms. However, recently things have been different:
It has taken India 30 years to get back on that track. In his first term as finance minister, Chidambaram experimented with the Laffer Curve and for every 10% reduction in direct income levies, revenues rose 14%, rising seven-fold between 1991 and 2001.

Let's hope India stays on track and continues developing its economy.

Monday, March 07, 2005

China Moving More Agressively On Taiwan
A little update on recent developments here. It seems that we are countering China's increasing impatience on reunification with Taiwan by encouraging the remilitarization of Japan who could be used a strong regional ally of Taiwan.

This of course pisses the Chinese off to no end. Japan-China relations are at an all time low - I have met quite a few people who are from China who look forward to the day when their country can "re-Hiroshima" Hiroshima, and this sentiment is not isolated.

Keep your eyes on this one.

Friday, March 04, 2005

Transcript of Debate On Rick Sander's Article Questioning Whether Affirmative Action Benefits African-American's
Well, not quite a transcript, but Tara Heumann, a 1L at Stanford provided this, and it is better than nothing.

Professor Sander
the group that does the most pro bono work while in law school are blacks
blacks are the most likely group to participate in student government
blacks do the most pro bono work once they graduate

black students are twice as likely as white students to fail to graduate from law school
black students are 4 times less likely to pass the bar on their first try
blacks are 6 times as likely as white law students to fail to pass the bar after several attempts
mismatch theory – students can’t perform ell when the gap is too large between their capabilities and those of their classmates

Sander’ theory: if affirmative action were ended and if blacks went to the law schools where their credentials were as good as whites, they would graduate, have higher bar passage rates, etc.

2nd guy – David L. Chambers (critiqued Sander’ work)

this theory of the mismatch and that if you corrected it, blacks would do better are total garbage
mismatch is unproven and if it were testable it would probably be wrong
does not believe that ending affirmative action is the way to raise the bar passage rate

Stuart Taylor –
Much of Sander’ article is devastating to the picture of affirmative action that the law schools have painted
43% of African Americans who enter law school never become lawyers – these are highly motivated people and he thinks this system isn’t doing these people any favors
- many of the African Americans who make it through the bar are paid less
- almost every law school in the country uses racial characteristics to pick the class (law schools’ preference were heavier than the undergraduate universities) see Grutter v. Bollinger 539 U.S. 306

Rachel Moran –Boalt Hall

Important how we frame this debate
- affirmative action in higher education was really a form of desegregation
- with the decisions of Bakke and Grutter converted corrective justice into diversity that is optional and depends on the progress of the education system
o we have converted this into an efficacy debate (it’s no longer a moral imperative of integration)
o it’s important to recognize an achievement gap and to address it
o different credentials going in and different achievements coming out – is this necessarily evidence of a mismatch?
In Sander’ article, there is no direct evidence of how law students learn and how this affects their performance – no student or faculty surveys or info about how the learning process goes on in law school
- large impersonal classes and study groups is the way most students learn in the first year
- this is cheap for law schools because they need fewer faculty members
- so learning depends on peer-to-peer interactions

Professor Banks asks questions:
Prof Sander, You spend a lot of time in your article identifying and describing racial disparities – but how do we explain these disparities and what should we do about them?
- you attribute this to affirmative action
- how do you identify the extent/magnitude of affirmative action?

Moran – giving points to applicants based on their race is just too rigid a system for evaluating candidates

Banks asks Sander: Why/how has affirmative action backfired?
- If credentials predict performance at all, you are going to replicate this gap with poor performance by black students in law school
- If you’re in the bottom 10th of the class, then you are going to earn a lot less than if you are at the top of the class at a less prestigious school
- He found that the dominant indicator of bar passage rate is GPA in law school
- If you look at similar blacks and similar whites before they enter law school, the blacks do less well – because we et them up for failure by sending them to schools where their white classmates have better credentials
Banks à Sander: are you advising admissions committees to discriminate against black students in order to help them out? Sander says no

Sander says that mismatch can happen for any student or group that is given preference in the admissions process, not just blacks

For students who would not be especially likely to ever practice law, would it be good for them never to have been admitted to law school?
- Answer: we don’t know what the human capital value of going to law school is – we don’t know if you’re better off if you don’t practice law

Bar passage and attrition – Banks says that black students don’t seem to have problems at elite law schools (shouldn’t they be exempted from the “no affirmative action” plan because black students don’t seem to have a problem there)

Chambers thinks that blacks are better off at elite schools

Taylor thinks that black students should receive disclosure information from the schools about their affirmative action policies
Chambers – why would you provide information by race if Sander wants to argue that it’s not race that makes the difference, but entry credentials

Sander argues that law schools need to be held accountable for their admissions processes and then they would have to compete with each other to provide the best student support and services for black and other students
- Banks says when he applied to law schools he didn’t give a shit about the median credentials of the black students that were attending different law schools
- What he would have wanted to know was how black law students did in their careers after they graduate from different law schools

1. Elliott [that's me!] – should top law schools not care about the cascade effect because their minority students are doing better at the top? Even though minority students are hurt down the line?
- Do not assume that black students would be better of at lesser schools
- Do not assume that academic mismatch is proven or that you are totally wedded to your entering credentials
o focus on admissions to the exclusion of the learning process is really stupid – don’t assume that entering credentials are you destiny
o if law schools want to eschew the questions of how they can provide a preferable learning environment because it would require work and money then we may not get anywhere
§ maybe schools have to decrease class size, maybe they have to hire more minority faculty members, maybe they have to provide some other kind of academic support for minority students, but if schools don’t want to do this, maybe we won’t make progress
2. Julia – clarify the figure that 43% of black law students don’t make it into the legal profession
- What are they doing instead? Maybe it’s of comparable prestige…
- Most of this group doesn’t even finish more than the first year
- Of the 50% that graduate, some don’t choose to take the bar
Chimps Attack
Couple had Chimp Moe. Chimp Moe bit off a person's finger. Couple sent Chimp Moe to sanctuary. Years Pass. Couple goes to visit Chimp Moe for Chimp Moe's Birthday. Chimp Moe's Chimp Friends attack couple:

The couple had brought Moe a cake and were standing outside his cage when Buddy and Ollie, two of four chimpanzees in the adjoining cage, attacked St. James Davis, Martarano said. Officials have not determined how the chimps got out of their enclosure, he said....
St. James Davis had severe facial injuries and would require extensive surgery in an attempt to reattach his nose, Dr. Maureen Martin of Kern Medical Center told KGET-TV of Bakersfield. His testicles and a foot also were severed, Kern County Sheriff's Cmdr. Hal Chealander told The Bakersfield Californian.

Wow - who knew chimps could be so vicious?
"The Whore Lived Like a German"
Turkish honor killings in Germany (where family members murder a daughter who has gone outside the bounds of islamically acceptable behavior). As my old prof Eugene Volokh says, this article will make your blood curdle. I think I have read other stories of honor killings where women have had acid thrown on their faces or been doused with gasoline and lit on fire by their family members.

Wednesday, March 02, 2005

Worth Keeping an Eye on.
Stanford's own Clint Taylor has an article in American Spectator:
An ethics complaint alleges that an ACLU attorney violated conflict of interest rules in two Arkansas gay-rights cases, and suggests that the attorney "actively sabotaged" her client's case by refusing to admit evidence that might call the ACLU's agenda into question.

Tuesday, March 01, 2005

What Conservatives Should Look For in Supreme Court Justices
The often perceived too-liberal-incoming Attorney General Gonzalez is making a big effort to be perceived as conservative enough for a Supreme Court Judgeship.

In his first lengthy address since becoming attorney general in early February, Gonzales said people who distribute obscene materials do not enjoy constitutional guarantees of free speech.

"I am committed to prosecuting these crimes aggressively," he said to a Washington meeting of the California-based Hoover Institution.

As Jayson Javitz predicts, this does not make me (a non-doctrinal libertarian) feel all that happy. However, it comes with the territory of supporting Republicans, and I can't say that I am all that surprised.

What does concern me is that this move may burnish Gonzalez credentials to be placed on the high court. In my eyes being a firebrand on obscenity cases does not make the attorney general a judicial conservative. What does? Well, when Rehnquist steps down, here are three things to check for. Does a Supreme Court nominee:

(a) Believe enshrining racism in the pursuit of diversity is permissible because it meets a compelling government interest?
(b) Believe that all activities (even gardening home vegetables) fall potentially within a comprehensive scheme that regulates interstate commerce?
(c) Believe that Roe v. Wade is truly different from Lochner? Both cases found hidden rights in the clause of "Due Process".

If a Supreme Court judge answers yes to any of these three questions, he or she is not a judicial conservative.

Why this test? Well part (a) permits compelling government interests to be invented largely out of thin air, jeopardizing our constitutional framework. For the most basic constitutional rights can be overridden when a compelling governmental interest is found. With these stakes a judicial conservative would have an incredibly high standard in finding such an interest, which the desire for diversity never met. Part (b) tests the commitment of a judge to the enumerated powers scheme. Our Constitution is supposedly a document which gives Congress only certain enumerated powers to pass laws, yet outside of violating the bill of rights, Congress is largely able to pass any law it desires. This is made possible through a misreading of interstate commerce which permitted home-grown and home-consumed produce that never left home to be regulated as part of interstate commerce. A true judicial conservative would never permit this. Finally, part (c) deals with two cases that found substantive rights within the due process clause. One is celebrated by the legal academy (Roe) one is condemned as the worst example of judicial activism because it largely forbade governmental regulation of the economy before the New Deal (Lochner). A judicial conservative would ask for consistency on this point.

So even if you cheer Gonzalez's recent move, be hesitant before believing he might be conservative enough for the Supreme Court. He has much yet to prove.