Raison d'Blog

I've never seen it put any better than by a guest at Brian Leiter's place:

It should be obvious, but I'll say it anyhow: the point of my blogging is to entertain people who are procrastinating.

Consensus

Former Yugoslavia is a messy place, but according to youth leader Veselin Gatalo, "one thing we all have in common is Bruce Lee." Word via BoingBoing.

Fe-Man

I love these quizzes. I don't usually post the results, but I always take them when somebody puts up a link. So thanks to Jake.
Your results:
You are Iron Man

Iron Man 85% Superman 70% Catwoman 70% Spider-Man 60% Green Lantern 60% Supergirl 60% The Flash 50% Hulk 50% Robin 45% Wonder Woman 35% Batman 35%

Inventor. Businessman. Genius.

Click here to take the "Which Superhero are you?" quiz...

Bad Fortune

According to my fortune cookie, "The first blow does not fell the tree." So basically, Tao Garden is saying I hit like a girl. That's the last time I ever get Chow Fun from them.

Merry Christmas

I don't know about you, but where I'm sitting, Thanksgiving is over. I'm not some kind of wacko who lives by his home time zone even if thousands of miles away. Which means that it's now Christmastime, and will remain so until December 31. And I'm happy about that too, because Thanksgiving is kind of crap. I spent most of it right here working, and only ate with a handful of California Club refugees, huddled arpund a trash can fire upstairs. But now that it's The Most Wonderful Time of the Year™ I can prowl the town, sharply admonishing anyone who looks insufficiently cheerful. "Smile!" I hiss at them, "It's Christmas!"

Actually today was pretty nice. After dinner a few of us went to see Casablanca down in the square, and when we got back someone had made fresh apple pie. I'm going to sleep happy, to dream about being Humphrey Bogart. And eating pie.

Free Pie

I like to think of myself as an independent, strong-willed sort of person and am always distressed to be confronted with evidence to the contrary. I already knew I was affected to an absurd degree by the weather; a sunny day puts a spring in my step and rain will make even the best news sound disappointing. Today at lunch I discovered another lever on my attitude: food. Learning that the Hark was giving out free pie with lunch made my entire morning. Really, I'm still elated.

It's a bit worrying that my whole outlook varies wildly with minor changes in the environment, but on the other hand, I did get free pie.

This Stinks

Someone stole my deodorant out of my caddy in the bathroom. This raises two important issues.

(1) What the hell? You're paying tens of thousands of dollars to be here and you have to steal my toiletries?

(2) You do realize I rub that thing all up in my armpits right? Becuase, that's what they're used for.

Some people man.

McCain 2008

On NBC's Chris Matthews Show yesterday, David Brooks said conservatives had warmed to John McCain, and Matthews said he'd heard the same thing. ... Let's see. Conservatives are for McCain. Liberals like McCain. Centrists love McCain. Doesn't that mean McCain might, er, win? Who's going to vote against him? In a general election, it seems like McCain would come close to being elected by acclamation! It will take all the genius of the American political system to make sure he isn't on the ballot. ...

Care of the often brilliant Kaus. Emphasis in the original.

79-63

Man, the whole UC system seems to have our number this year.

Cal-Stanford Postgame Report in Two Words

Basketball Season!

HLS Admissions Blog

I met Toby Stock earlier this year and was impressed enough to volunteer my time with the admissions office. He's doing a lot of new and interesting things to make the process more transparent for applicants (and hopefully thereby convince them to come here). The latest effort is the HLS JD admissions blog.

Overheard in Cambridge

Who do I have to sleep with to get on Law Review? Because I hope it's you.

Watching the Big Game in Boston

Gradute from Stanford or Berkeley? Attend but drop out? Just like PAC-10 football? Have an inexplicable urge to meet me in person? Come join me and Boston area Stanford/Cal alumni groups and watch the 108th Big Game this Saturday at 7:00 pm Eastern at:

Hurricane O'Reilly's
150 Canal Street, Boston
Across the streeet from the Fleet Center, by North Station.

Go Cardinal.

The American Constitution Society

The ACS often seems like the Second Sex of law school political groups, defined in opposition to the enormously (monstrously?) influential Federalist Society. "It's like FedSoc," the student staffing their table during admit weekend told me, "only liberal." So I went to their regional conference last weekend to see what they were really all about. It helped that it was all of ninety yards from my room, and they promised free breakfast and lunch.

One of the ways I describe myself politically is to say that I'm a "cynical liberal." A son of self-described yellow-dog Democrats, I agree with the general values and principles. But i don't agree with all of the left's specific policy prescriptions and certainly not all of its methods. I usually can't talk to passionate partisans for all that long at a stretch, because picking a side first leads too easily to sloppy and dishonest thinking. And in general while I'd like for government to help to make people's lives better, I'm as suspicious of its actual ability to do so as anyone who's suffered through the DMV. I've read my Burke. I was even a libertarian for a while, but I got over it. All of this horrifies NeoTokyo, who put up an impassioned defense of picking a side, even if only by hairstyle.

So my favorite part of the conference was an informal Big Ideas hash session over breakfast, where the attendees argued about what being a "Progressive" really means, beyond a list of policy positions. Someone suggested liberals needed their own version of the Contract with America, laying out a core set of beliefs, with strong intuitive appeal. Half-jokingly, I had to point out that as liberals we don't do contracts; we do entitlements. "We don't talk about Contracts with America," I argued, "we talk about The America You Deserve."

My favorite take was from a 1L here who said that it's about making formally enumerated rights substantive. "Wow," I thought, "there you've got your political and jurisprudential theories all rolled up into one! I like it!" Of course I didn't think all those big words, but writing them out sure illustrates the problem of boiling progressivism down to a snappy slogan.

In the afternoon I went to a strategy session on mission statements, where I was exposed for the first time to the general ACS mission statement:

(ACS) is one of the nation's leading progressive legal organizations. Founded in 2001, ACS is comprised of law students, lawyers, scholars, judges, policymakers, activists and other concerned individuals who are working to ensure that the fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice are in their rightful, central place in American law.

There's some good stuff in there, and I'd probably never heard it before only because it's buried at the bottom of that paragraph. I like the emphasis on putting the principles in their "rightful" place, embracing the idealism of America's founding instead of cynically focusing on our shortcomings. If that's what it means to be a progressive, sign me up.

The Network of Polyphemus

From Joseph Bellacosa's dissent in CBS v. Ziff-Davis 75 N.Y.2d 496:

CBS chose - for business reasons it knows best - to complete its significant acquisition at the impressively high agreed price with its cyclopean eye wide open.

Tonight's contracts cases have a distinct Homeric flavor to them, no?

Posner on Homer

It is not over now. But with damages having been fixed at a relatively modest level by the district court and not challenged by the plaintiff, and a voluminous record having been compiled in the summary judgment proceedings, we trust the parties will find it possible now to settle the case. Even the Trojan War lasted only ten years.

Emphasis added. From 916 F.2d 1174.

The Section Six Slander

Someone wrote this hysterical satirical newsletter about students and professors in our section. I can't take credit for the authorship, but I scanned my copy from class and I have to pass it along. Click on a page to open it full-size in a new window.

UPDATE: I've taken this down. Apparently at least one employer based part of a hiring decision on it. That's just not cool, and I won't allow it. If anyone actually in section six wants a copy, just ask me in person and I'll send you one. The rest of you have demonstrated that you can't be trusted with the funny. I'm very disappointed.

A Question of Status

Today at mediation a woman announced in court that she didn't want to have a session with us, because, "we're just college kids."

Please ma'am. We're professional students. I haven't been in college for at least ... uh ... four months now. So there.

It's Big Game Week

Some friends directed me to this brilliant gonzo documentary. Underground at Cal.

Rockstar

We all know I love dressing up to go drinking, so showing up at a 3L's rock star theme party was a foregone conclusion. Of course the tattoos I drew all over my arms in sharpie are still there this morning, and it wasn't until our third possession in this morning's flag football game that I remembered I was still wearing eyeliner. That stuff is surprisingly difficult to wash off. But now I know how Steven Tyler feels when he wakes up in the morning. Old.

Achewood and Other Comics

Achewood used to appear in The Daily. I never really got it. I think that's because so much of the strip's (brilliant) humor comes from knowledge of the quirks in the remarkably well-developed characters, something that doesn't come out from sporadic reading. You may want to check out the Wikipedia entry first.

Dinosaur Comics has a similar brand of humor, and Brigadier General John Stark has the same fixed-panel structure that tries to get it all done with the writing. I can't draw, so I sympathize.

Herpes Insurance

Like so many good stories, ours takes place in Texas. A man known to history only as G.W. (I know what you're thinking, but I had it checked out and it's not that G.W.) is at a nightclub, where he is celebrating his thirtieth birthday. He has herpes. No symptoms right now, but it's there. He picks up S.S. at the club, and they go back to his place. He doesn't tell S he has herpes, and they have sex. Happy birthday G!

G wakes up the next morning to find open sores on his penis. Dammit! "Uh, S," he says, "you should consider having a long-term relationship with me. After all, I think I may have just given you herpes."

S does not think that is a good idea.

S sues G in Texas state court. Lucky for G, his homeowner's insurance covers him from most kinds of liability. Unfortunately, he isn't covered if he intentionally causes harm. State Farm offers to supply G with a lawyer. Seeing a conflict of interest (if he's found to have injured S intentionally, like by giving her herpes, his insurance company doesn't have to pay anything) he finds his own instead.

Now for the fun part: G settles with S, who promises to waive all damages in exchange for a one third cut of a lawsuit G plans to file against the insurance company. So now G and S, to whom he gave an incurable venereal disease, are on the same side against State Farm insurance. S argues that even though he elected not to share his sexual history, G didn't harm her intentionally. State Farm argues that its own customer goes around trying to spread the virus. The arguments are close, and the case is appealed al the way up to the Texas Supreme Court.

After much deliberation, the case is remanded down to lower courts to resolve some factual controversies. Should G have known he was contagious even if he didn't exhibit symptoms? There weren't Valtrex commercials playing every goddamn minute back them to let people know these things. On the one hand, G was a doctor, and probably should have known something about herpes. On the other, he was only an optometrist, and everyone knows they aren't real doctors.

Find the whole story at State Farm Fire & Casualty Co. v. S.S. and G.W., 858 S.W.2d 374 (S.C. Tex. 1993).

Sober Discussions of Serious Issues

Learn all you ever needed to know about Intelligent Design and the US torture policy over at Fafblog. Excerpt:

Q. Why am I being not-tortured in this non-prison?
A. Because you're a dangerous terrorist and an enemy of the United States.
Q. Ah! How'd you find that out?
A. You told us, right after we started torturing you.
Q. You also got me to say I was a duck.
A. Ducks are dangerous terrorists and enemies of the United States.
Q. And to think I never knew! Who told you that?
A. Some duck we tortured.

Separated at Birth?

Maybe it's just because I just saw them back-to-back on TV, but aren't these two a whole lot alike?

  Denny Crane             John McCain

[Update] For the moment I'm most concerned with the similarities between McCain and the Boston Legal character, not Shatner himself. Part of it is certainly that mischievous smile. But it's the whole package. Both have a short, stocky build with a round head, with broad cheeks and a strong forehead. Both are pugnacious, outspoken conservatives with a reputation for saying exactly what's on their minds and causing trouble. Both have a sense of spectacle and clearly relish the media spotlight. Though thoroughly lovable, both may be just a little bit crazy. But good crazy.

Don't Say Dildo in an Interview

Go read this right now.

Clever Perspectives

Best two pieces of advice I've heard here so far:

(1) The secret to legal writing is not to obsess about getting the format precisely right, it's assuming that your audience is busy. I had philosophy TAs tell me that the key to good philosophy writing was to assume that your reader was both dumb and mean, and then write so that they still can't misinterpret you. Even if they try. Legal writing is kind of the same. Once you keep in mind that though the person reading your memo is probably very smart, they have to get through it really fast, the whole structure makes a lot more sense. Just think about the last time you read ... well just about any legal scholarship. It was horribly written, wasn't it? Ever read a Posner opinion? Don't be that guy.

(2) The secret to making networking non-awkward is to not just call people up and ask them for a job, but to call them up to ask for advice. Lawyers have notoriously big egos, and would probably love nothing more than to regale wide-eyed you with war stories. People love to give advice, because it makes them feel important. So this is a great way to get lots of great info about how to find and land a job, without feeling like you're a mooch begging everyone you know for help.

The Mission

One of the books we're reading for a seminar of mine is YLS dean Anthony Kronman's The Lost Lawyer, where he complains that lawyers have become the kinds of amoral mercenaries you see them portrayed as on TV. It's long on everything but solutions, and the only bit of advice he offers students is to seek out private practice in small towns and backwater legal markets. Our professor siad he talked with Kronman about how Yale's loan repayment play was working, and the dean was delighted to report that most participants had hung out a shingle in small towns in Vermon and stuff like that.

The professor asked Larry Summers what he thought of this. The answer: "We don't want a penny of that money to go to neighborhood lawyers in Vermont! We're trying to run this goddamn country! Er, to train leaders. Yeah. Leaders."

This account comports with my experience.

Technical Difficulties

I was just watching Matrix Reloaded on TBS in the common room, when suddenly the picture cut out. They claimed it was for one of those emergency boradcast things, but really I think it's just that Monica Belucci was more than our old Sony could handle.

I Could Get Used to Autumn

Today was cool and wet, with a gray sky and light fog that kept the grass wet through the afternoon. Back home, this would be perfect weather to stay inside with something hot to drink. But strolling around (to our flag football game, and to check a source in the B-school library) I kind of liked it. It was calming in the way that some authorities based on tradition could be, with the stately confidence that This Is How Things Are Done. And the trees really are very pretty.

Football

This is the first Stanford game I get to watch this year, and it's only on because we're playing USC. So it's a little disheartening that all I get to see is the systematic dismantling of my alma mater. Right now, at halftime, we trail 44-7. Actually, the team looks like they're playing well, they just look outmatched physically by the Trojans. One bright spot: the announcers debating at length whether the Trojans' kicking game was their "Achilles' heel."

But yeah, 44-7. At halftime. Basketball season?

You Have Too Much Stuff

You will not read truer words today than these by SF Gate columnist Mark Morford:

The cure is simple, so graceful that it will make you feel lighter and healthier and good the minute you start, and of course you can start right now and you don't even need any drugs or wine or nudity, though those always, always help.

This is what you do: You throw stuff out.

Read the whole thing here. Thanks to Boing Boing for the link.

You Know the Bar You're At Sucks

When the there's a line out the door to use the men's room, and the ladies' in completely empty. Sign of a bad ratio, that is.

Torts: A Synthesis

Professor Torts has a very theoretical, highly unorthodox curriculum. We don't learn much doctrine, "because it's easy, and not that important." It's taken a while, but the themes of the course have started to coalesce. I think it goes something like this:

Much American law is founded on certain assumptions about humans and how they make decisions. Specifically, people have sets of preferences that are relatively stable, and their decisions are made in a way that reflects those preferences. The critical Torts scholar should be concerned about this for three reasons.

First, because the influence of this model is widely unacknowledged. It is rarely made explicit, and is so deeply embedded in the culture that its influence can be hard to recognize. To the extend that discussions about the law don't address it, they cannot explain important features of legal rules. The model influences what sets of legal rules are adopted in ways that aren't accounted for by other theories.

Second, because this received model of human psychology is deeply flawed. People's decisions are affected to a remarkable degree by situational forces - the environment they are in when their choices are made. Either people's preferences (which even in the received model they may not entirely be aware of) contain maxims like "defer to authority" that don't square with traditional understandings of what people want, or their preferences are not very stable across environments. There is apparently a wealth of research to back up these empirical concerns.

Third, because the rubric of choice legitimizes unjust outcomes. People don't mind when bad things happen to others because of their own choices. Our moral sensibilities are only aroused when someone suffers misfortunes they don't deserve. The received model causes us to over-attribute the causes of harm to the actions and choices of the victims, leading us to under-compensate them. This is unjust.

Now for some reason he's been dancing around laying this all out in one go, and it frequently gets cloaked in inflammatory language like, "[the received model] is a collective lie we tell ourselves," but set out like that it doesn't seem all too incredible.

Let's Make a Deal

Word on the street is that in his spare time, Professor Contracts brokered some huge commercial transaction, and when it was done his compensation was in the high eight figures.

Research is Killing Me

I have the workload here mostly under control, and I'm staying on top of my reading. But it seems like every minute I spend on legal writing, or worse yet, practise research exercises, translated directly into sleep debt. So right now the library reference has moved itself right up to the number one spot on the old Enemies list. A regular chart-topper.

And contracts before nine. Tomorrow's going to be a very long day.

Judicial Term Limits

Today the federalist society sponsored a debate on a proposed term limits for supreme court judges. FedSoc co-founder Steven Calabresi argued in favor of a constitutional ammendment naming 18-year terms, against BU lawprof Ward Farnsworth. In my humble estimation, Steven got schooled. Thoroughly.

Casebook Quote of the Day

I love it when judges try to get all poetical in their opinions.

Although the past decisions hover over the issue in the somewhat wispy form of the figures of a Chagall painting, we can abstract from those decisions a clear and simple rule.

Matthew Oscar Tobriner, on living in sin. 18 Cal. 3d 660, 557 P.2d 106 (1976)