December 18, 2004

A peace vigil.

Today, I went down to State Street to sit in a café and do a bit of exam-grading. Afterwards, I set out to do a little shopping.


Oh, but what is this about? "Hate America Rally"?


The upper layer of signs is a response to an earlier set of signs, promoting a "peace vigil." [ADDED: Yes, I did realize when I originally posted this that the signs came from The URL is readable in the photographs of the signs.]


Hmmm... it seems the peace vigil is going on right now, at the Lisa Link Peace Park, which is just the next block up, Let's get some pictures. What sort of a group has assembed?


A little group in the center is huddled together singing "Oh, President, oh, President" to the tune of "Oh, Christmas tree." I can't make out any other words to the song. There are more signs than people:


The signs are a bit short on clever rhetoric ("No to military stop loss orders/Yes to stopping the loss of our democracy").


This was not a rally, but a vigil, a small group of people set on establishing what the flyers called an "alternative holiday presence."

"The best shows force people who hate one another to work together."

Alessandra Stanley reviews the "Apprentice" finale.
[T]he calm, purposeful Kelly, a former Army Ranger and a West Point graduate, was up against Jennifer Massey, a pretty, fierce and unpleasant lawyer who attended Princeton and Harvard Law School. But the show backed off the more intriguing undercurrents. Jennifer repeatedly accused Kelly of being a manipulative penthouse gossip, and there was plenty of videotape to support her. Instead, at the end, the show demonized the blonde and framed Kelly as the quintessential brave American soldier: a semper fi kind of guy who could lead a Trump company into glory (though a battle with creditors could be just as likely).

It was obvious from the start that Kelly would win. The only suspense came when Mr. Trump's chief operating officer, Matthew Calamari, got up to explain his vote and got stage fright instead. "I'm not doing too good," he said, mid-flop-sweat.

Well put.

UPDATE: "Semper fi" may rhyme with "guy," but isn't that the Marines' motto? The Army Rangers' motto is "Sua sponte" -- or is it "Lead the way"? -- right?

"Whores' lives are human lives."

The NYT describes the state of the sex workers movement:
Such a movement has long existed in liberal urban centers like New York and San Francisco, where there is an infirmary for prostitutes named for Margo St. James, the founder in the 1970's of one of the best-known prostitute groups, Coyote (for Call Off Your Old Tired Ethics). But the Internet, coupled with a younger generation of women willing to speak out as current or former prostitutes and tougher federal law enforcement are giving momentum to a more broadly based movement, some of the women said. ... [There was a] national Day of Remembrance yesterday to honor murdered prostitutes. In New York, former and current prostitutes gathered outside Judson Memorial Church on Washington Square Park to read the names of the dead. After each speaker read her segment, the crowd of about 20 people, some holding candles, said "whores' lives are human lives."
The article also describes the oppostion to the movement: "It's not just women's rights... We really haven't talked about what it means to increase the demand and legitimize the buying and selling of human beings."

"The leading cause of death on death row is old age."

If the death penalty is really the death penalty, why is California solving its problem of too many prisoners on death row by spending $220 million to build a new death row prison? It seems to me that if you are going to use the death penalty, you should carry it out reasonably quickly. But maybe what California has is not actually a death penalty:
Franklin E. Zimring, a law professor at the University of California, Berkeley, and the author of a book on capital punishment, said a bigger prison at San Quentin would be an appropriate metaphor for a state that values law and order but seems to have little appetite for Texas-style justice. Texas leads the nation in executions, with 336 since 1976. Its death row now houses 444 inmates.

"What we are talking about looks like an inefficiency, but it may function to give us exactly what we want, which is a death penalty without executions," Professor Zimring said. "When people are ambivalent and not very honest about their priorities, it is very difficult to distinguish between ingenuity and inefficiency."

He said that what was most remarkable about capital punishment in California was that even with strong public support for it - a Field Poll in March showed 68 percent favored the death penalty for serious crimes - there was scant outrage over the courts' slow-paced application of it.

The suspicion is that Californians want to be able to express their condemnation, to say "you deserve to die," but they also want to say "we should not kill." It seems incoherent, but perhaps it is quite coherent. Thinking about it, I realize it is about the way I think of the death penalty.

UPDATE: Rick Garnett, at Mirror of Justice, agrees and frames the idea in Catholic terms:
I guess I have concluded that we are foreclosed from giving some criminals what they truly deserve (and don't Catholics often pray that we will not receive what we truly deserve?) by a moral prohibition on unnecessary, intentional killings.

Fathoming the mind of the computer.

I don't have the time or the inclination to solve computer problems. You have to think, how would the computer be thinking about things to be coming up with this? In my "Milwaukee landmarks" post (scroll down one hop), with Safari as my browser, the photo of the lobby doesn't show up. All the other photos that appear on my photo album page show up in the blog, and there is nothing different about the html coding for that photo. The most puzzling thing is that photo does show if I use a different browser. Mozilla and Explorer both work! Why would Safari selectively shun one of the photographs? It has a psychotic aversion to lobbies?

Here's another Milwaukee photo, shot from the rooftop of a parking garage:

December 17, 2004

A 2-disc special edition?

A 2-disc special edition of "Bringing Up Baby"? Great old movie, but what's to put in a special edition?

Milwaukee landmarks.

I had to go to Milwaukee today:

I arrived at the appointed address -- 225 E. Michigan Avenue -- and discovered a beautiful building with a "National Register of Historic Places" plaque. This is the Mackie Building -- also called the Chamber of Commerce Building. It's a late Victorian style building, designed by Edward Townsend Mix, from 1879.

The sculpted facade is quite grand:

The lobby is elegant:

The three-story Grain Exchange Room is eye-popping:

Next to the Mackie Building is another National Register building by Edward Townsend Mix, the Mitchell Building. It's in the French Second Empire Style, from 1876, and has some pretty cool light fixtures:

As a break from all this grandeur, at street level, there's this homey eatery:


This morning, I'm driving 80 miles, to Milwaukee, to do a roundtable with some Wisconsin lawyers for the Wisconsin Law Journal. We're going to talk about federal jurisdiction, the old questions: when can you go to federal court and how do you know when you should want to go to federal court? This is a subject I've been teaching for twenty years, and yet somehow I wonder whether I'll have anything to say. I'll be interested to hear what the practicing lawyers have to say on the subject, at the very least. I'm there to play the role of The Professor.

So I'm off. I'll be back later (with any luck). Perhaps I'll have some Milwaukee photographs or Milwaukee stories.

"A fully abstract style based on tight grids and repetitive linear marks."

The painter Agnes Martin has died, at the age of 92. She was loved for her "fully abstract style based on tight grids and repetitive linear marks."

Ah, how well I remember in the 1970s, when a prominent magazine -- I've forgotten which -- analyzed the essential difference between male artists and female artists and declared that women's art tended to use a grid. Some key women like Martin did work with a grid, but to say that women used grids! As if it were biological! What a putdown! Without a grid, unlike a man, you'd be lost. You need a regimented structure to constrict you -- an artistic corset! And consider it, you younger women (and men): this is how major magazines wrote about women even after the great victories of the women's movement. This was considered a big step up from saying women simply could not be great painters. When I went to art school in the early 1970s, the school had a professor who told his students, year after year, that women could not be sculptors, and therefore the best grade a women could get in his class was a B.

None of this takes anything away from Agnes Martin, of course. Goodbye to the grand old painter, and thanks!

Martin seems also to be the patron saint for artists who give up their work:
In 1967, when her New York career was taking off, she abruptly left the city, wandered the country for months in a pickup and camper, and stopped making art for seven years. She finally settled in New Mexico, building an adobe house with her own hands on a remote mesa where in winter she was snowed in for weeks at a time...

Before leaving [New York] she gave away all her paint and canvas rolls, hoping young artists would use them. Once she starting painting again in 1974, however, she worked solidly until the end of her life, in a format that seldom varied: six-foot-square canvases on which she drew horizontal graphite lines and painted bands of color with subtly vigorous strokes. She changed her palette from series to series, using pale colors one year, and black, white or gray the next.
Everyone who has ever painted, then given it all up -- and I include myself -- might take inspiration from this grand old woman. Who knows if the day may come when you can find your way back to picking up the brush again?

December 16, 2004

Line that made me shout "Liar!"

"I think for me it's really not so much about the money as about the opportunity just to interact with Mr. Trump."

Yes, I'm watching the finale of "The Apprentice."

UPDATE: Beth Mauldin writes that the show was scripted. Yes, it was. And quite badly so. The part with Regis Philbin (ugh!) running around in the audience interviewing people was horrid. You could tell these people were reciting lines. They were wooden. Their syntax was not normal speech. And it was so not entertaining. The choice between Kelly and Jen was just not a matter worth talking about for so long. Jen, you were a little abrasive and people didn't like you -- as Trump would say (and say and say) -- but we were rooting for you at my house.

A Capitol Christmas.

Now that the lights are on and the decorations up, let's get another look at the holiday tree – Christmas tree, if you prefer – at the Capitol Building here in Madison.



Local schoolkids made the decorations:



Groups of schoolkids were getting a tour of the building today.


Do you think it's wrong to have a holiday/Christmas tree in the State Capitol? Well, that's the Wisconsin Supreme Court right there:


Clearly, they are aware of the situation. And I'm sure they've noticed our little Ten Commandments display up here, in one of the Capitol's four central mosaics:


But the Capitol is teeming with imagery. Not the least is our own little totem animal:


I hope you don't mind.


You've made it!

Congratulations to my son John for finishing the last exam of the first semester of law school... and to everyone else who's just made it to the end of the amazing, intense, once-in-a-lifetime experience that is the first year of law school.

UPDATE: I mean semester, of course. The year is only half over. But in a way, you first year students are already junior-2Ls. The big mystery is over. You've passed through the initiation ritual. Law school is a normal thing now. I don't teach in the first semester. Only once in twenty years of teaching have I done so. So I'm only really familiar with the broken-in students. I teach second semester 1Ls, and I know it's not the same. The dramatic part of law school is that first semester, culminating in the exams you've now finished.

Have a great holiday everyone!


La Shawn Barber is wondering if she should get rid of the comments on her blog. In fact, she's asking people to comment about whether she should get rid of the comments. I read a lot of the comments, and it got me thinking about the possibility of putting my comments back. La Shawn holds me up as one of the examples of bloggers who don't have comments. I had comments last spring, and most of them were great, but dealing with nasty comments was a big drag. Here's my post from last May explaining why I turned off the comments.

Writing this post, I started to feel like turning the comments back on. I saved this post as a draft last night, then had to leave the house for an appointment. By the time I got to my car, I had come to my senses. I remembered a thought that went through my head back in May: I don't want to live like this.

Surely, if I turned the comments back on, one or two people would make a project out of ruining them again. Some of what would otherwise be great reader comments becomes email, and I often update posts to quote the email. That's the way it's going to have to be.

If Lincoln was gay...

If Abraham Lincoln was gay, what would it change about the way we think about things today? The NYT has an article by Dinitia Smith about C.A. Tripp's book "The Intimate World of Abraham Lincoln." The book, published next month, will stir debate about the evidence, and you can prepare to hear repeated assurances about how men slept together all the time back in Lincoln's day, the era of a dire bed shortage that forced all manner of heterosexual men to sleep together. And sure, afterwards they raved to other men that their bedmate's thighs "were as perfect as a human being Could be." From what I've read so far, I assume Lincoln was gay. I assume Carl Sandburg believed Lincoln was gay when he wrote:
"Month by month in stacks and bundles of fact and legend, I found invisible companionships that surprised me. Perhaps a few of these presences lurk and murmur in this book." Sandburg also wrote that Lincoln and Joshua Speed had "streaks of lavender, spots soft as May violets."
So, assume Lincoln was gay. Now, what else do we think? Should we conclude gayness made him do the things he did as President?
[Mary Todd Lincoln biographer Jean H.] Baker said that his outsider status would explain his independence and his ability to take anti-Establishment positions like the issuing of the Emancipation Proclamation. As a homosexual, she said, "he would be on the margins of tradition." "He is willing to be independent, to do what is right," she said. "It is invested in his soul, in his psyche and in his behavior."
Will it -- should it -- change arguments about politics today?
Larry Kramer, the author and AIDS activist, said that Mr. Tripp's book "will change history." "It's a revolutionary book because the most important president in the history of the United States was gay," he said. "Now maybe they'll leave us alone, all those people in the party he founded.
More important that the question whether Lincoln was gay is the question of what use we will make of that piece of information. UPDATE: Betsy Newmark writes: "I would respond to Ann Althouse that such discussions say a lot more about people today than they do about Lincoln." I agree.

If Time had picked bloggers as Persons of the Year.

I see there's a lot of talk about the prospect of Time picking bloggers as the Persons of the Year, and apparently, it's been considered and rejected. But if Time had picked bloggers over President Bush (the obvious, obvious choice), I would have suspected it of shamelessly trying to get talked about forever in the blogosphere.

December 15, 2004

From blogs to books.

Here's a piece in today's NYT about bloggers writing books. Why shouldn't a serious author begin with a blog? It proves to publishers that there are people who want to read your writing. Did you know Ana Marie Cox received a $275,000 advance for her first novel?

But maybe bloggers won't write good books. The Times found an assistant professor of new media studies to naysay: "The style of blog writing is more oriented towards short form one page, set in the moment ... The sense of immediacy is quite important in blogs."

So maybe all the magic will be gone if you saddle a blogger to a long project. I think it would be disconcerting just to have to write putting the new material on the bottom of the page instead of piling on top.

Wresting great art from the dead hand.

The NYT has an editorial about the judicial decision that permits the moving of the Barnes collection. It also has an opinion piece by art critic Roberta Smith. The collector of the great set of paintings doomed his own project with truly excessive restrictions: only 1,200 visitors a week, no lending any paintings, no re-positioning them, even though it meant that Seurat's "Models" had to hang above Cezanne's "Card Players" and could never be scrutinized at close range.

The editorial calls the decision "an act of judicial common sense." Smith calls it "a triumph of accessibility over isolation, of art over the egos of collectors and, frankly, of the urban over the suburban." Smith makes an important point:
The Barnes collection is not the Sistine Chapel ceiling. Barnes didn't make the art; he bought it, one movable object at a time.

Though Barnes's act of assembling and positioning the works is itself an artwork, the artists whose works he collected did not create them as components of the larger artwork Barnes made. They made individual, movable pieces, that will take on a different look, a different meaning, if they are displayed differently. Why should a great Cezanne remain forever trapped within Barnes's vision? As Smith puts it:
Once more we are reminded that no one really owns art, that all collectors are temporary custodians. And the greater the art, the less any one person, especially a dead one, can control its destiny.

"Sadly, we've been trained to deny our love."

The NYT tells us to go ahead and deep-fat fry things:
The cooking method people fear most is the one they love most: frying...

Sadly, we've been trained to deny our love, even become ashamed of it, because frying is supposed to be unhealthy. And, the naysayers contend, it's a pain, it's expensive, and it's messy.


If you're going to sauté or stir-fry things, you might just as well deep-fry: no more fat is absorbed in deep-frying. And these recipes look delicious: spicy Indian fried fish, breaded pork steaks, fried onion rings, and sweet potato fritters. I think deep-frying may tend to make you get fat, not because it puts more fat in the food, but because it makes the food taste so damned good!

Welcome to the dark side!

Hey, RLC has already succumbed to the temptations of bloggism and tossed aside his Zen austerity:
So, yes, I might as well give myself the freedom to indulge in any sort of blithering about the wildlife in my backyard and what the folks in Austin TX are up to and how those nitwits in Washington won’t adopt my theories of government.

Hmmm.... one of his commentators thinks this story is a metaphor about me!

Local government and the war on terrorism.

Massachusetts Governor Mitt Romney speaks to the Homeland Security Advisory Council:
"The eyes and ears which gather intelligence need to be as developed in our country as they were in foreign countries during the cold war. Meter readers, E.M.S. drivers, law enforcement, private sector personnel need to be on the lookout for information which may be as useful."...

[U]nder Mr. Romney's proposal, every state would be urged to marshal local agencies and businesses, with the goal of collecting details and observations that might, when stitched together, point to a potential terrorist attack.

Note the key word "urged."

Under a much-maligned Supreme Court precedent, part of the Court's supposedly reactionary "federalism revolution," state and local government cannot be required to enforce national policies. My article on the subject is "The Vigor of Anti-Commandeering Doctrine in Times of Terror," 69 Brooklyn Law Review 1231 (2004)(from this symposium). If you haven't been inclined to believe that the Court's federalism doctrine really can work as a safeguard for individual liberty, think about the ability of state and local government to resist a command to carry our Romney's proposal and the consequent pressure to reframe the proposal so that it doesn't trigger this resistance.

Isn't it a bit late...

... to worry that the color-coded terror alert scale might lead to derision?

In fact, maybe you ought to be worrying that people will deride you for worrying after it's too late.

A new wonder of the world.

France opens the world's tallest bridge. Beautiful! One of the most marvelous things human beings have ever built.

UPDATE: A reader, a ciivl engineer, writes:
[A] powerpoint file with various pictures of this bridge was passed around our department today. In the pps file, most of the pictures showed the bridge in various stages of incompletion.

The most interesting thing to me was the fact that the bridge deck was a little bit wavy -- like a small amplitude sine wave -- during the middle phases of construction. This was apparently because all the cables had not been rigged yet. Once the cables were all rigged and properly tensioned, then the bridge deck becomes a straight creature.

But can you imagine trying to explain this phenomenon to the bridge's owner? "Sure the bridge deck is wavy. I know you didn't expect that. I know you've never seen that before. But trust me. When we hang all the cable and tighten 'em up, it'll all straighten out. Trust me. It'll look good."

Blogger burnout?

Entrepreneur Magazine reports that "many bloggers are finding the practice overwhelming and are suffering from blog burnout," based on a survey that showed "66 percent of blogs have been abandoned, either temporarily (not updated within two months) or permanently." I hope they limited the survey to blogs that at one point had regular postings. Some people hear how easy it is to start a blog, set one up, and never do anything with it. These people haven't burned out! Then there are all those people who are blogging to advance their business interests: it's an "effective business tool," but an annoying burden. For them, Entrepreneur Magazine his some practice tips: blog in a niche and on a schedule, find a relevant news item, quickly link and "make a tiny comment."

December 14, 2004

"Best Conservative Blog."

Congratulations to Captain Quarters for winning the "Best Conservative Blog" award. And I see that he said something nice about us runners up: "I had the misfortune of being squared off against some fine bloggers, including LaShawn Barber, who traded notes with me during the contest. I'm a big fan of VodkaPundit, who came in second, and Right Thinking and Ann Althouse. Be sure to check them out." Captain Ed's a big fan? Thanks!

The love of subordinate women.

The NYT reports that the University of Michigan "reports" that "men would rather marry their secretaries than their bosses, and evolution may be to blame." Go to the link and read how scientists devised a study and indulged in some speculation.
The findings, which seem to confirm an uncomfortable number of male stereotypes and many mothers' admonitions to their daughters, reflect more than male vanity and insecurity, the researchers argue. Dr. Brown and her co-author, Brian Lewis of the University of California, Los Angeles, wrote that "pressures associated with the threat of paternal uncertainty" shaped the men's decisions.

In other words, a subordinate woman might be less likely to fool around, and "female infidelity is a severe reproductive threat to males" in long-term relationships, the researchers wrote.

Scientists who engage in this sort of speculation seem to focus an awful lot on knowing you're the father of your mate's children. I'm not sure how good that reasoning is. In any case, why are "subordinate" women less likely to cheat? Wouldn't they tend to yield to other men?

That study reminded me of this interview with the Nobelist Elfriede Jelinek:
I describe the relationship between man and woman as a Hegelian relationship between master and slave. As long as men are able to increase their sexual value through work, fame or wealth, while women are only powerful through their body, beauty and youth, nothing will change.

How can you cling to such dated stereotypes when you yourself are acclaimed internationally for your intellect?

A woman who becomes famous through her work reduces her erotic value. A woman is permitted to chat or babble, but speaking in public with authority is still the greatest transgression.

You're suggesting that your achievements, like winning the Nobel Prize in Literature, detract from your overall appeal.

Certainly! A woman's artistic output makes her monstrous to men if she does not know to make herself small at the same time and present herself as a commodity. At best people are afraid of her.

I think Jelinek has a better grasp of human behavior than the scientist who speculates about evolution. But the scientist may be trying to explain why the human mind got to be the way it is, while Jelinek is understanding that mind as it is. Of course, both may be wrong, and it's pretty clear that both are leaving out something important and portraying humanity in a way that is too dark and degrading.

The poor octopus.

There's a Q&A column in the Science section of the NYT, and today's question is "How smart is the octopus, and how do we know?" Did someone write in with that question? I find it hard to believe someone was wondering about that and decided to write to the NYT for an answer. Maybe Q&A format just gives a spiffy look to the presentation of a stray little fact the paper wants to pass along.
In a 1992 study in Italy, Dr. Graziano Fiorito and Dr. Pietro Scotto found that when specimens of the common octopus, Octopus vulgaris, were rewarded with food for grabbing red balls rather than white balls, and punished with a mild shock when they chose the white balls, "untrained" octopuses that were allowed to observe them would then imitate their choices.

What strange things scientists decide to do!

But, wait, there's more about the octopus in the Science section. Here we learn of William Beebe, who became famous in the 1920s for studying the ocean in a bathysphere. A mark of his fame is that "[h]e even made an offstage appearance in the play 'The Man Who Came to Dinner.' (He sends its irascible protagonist an octopus.)" For some reason this article is called "Fame, Fortune and Nature, With an Irascible Octopus." The octopus was irascible? The sentence said the protagonist of the play was irascible. Or was sending the protagonist an octopus a way of saying, you're irascible, like an octopus? I don't know. I haven't read the play, but it seems the headline writer goofed. Still, the notion of an "irascible octopus" got me to read the article.

The poor octopus, experimented upon with electric shocks and slurred as "irascible"!

Those inconsistent federalists?

Adam Cohen has an editorial about the prospect of the Supreme Court bringing back the so-called "Constitution in exile." The focus is on the medical marijuana case and Wickard v. Filburn:
Getting rid of Wickard would be an important first step. At last month's argument, that did not appear likely. Justice Antonin Scalia, a leading states' rights champions, said he "always used to laugh at Wickard," but he seemed prepared to stick with it. It may be, however, that the justices are quicker to limit Congress's power when it does things they don't like (like gun regulation) than when it does things they do (like drug regulation). They may be waiting for a more congenial case.

Is Scalia "a leading states' rights champion"?
It may be that liberal editorialists are quicker to call Justices "states' rights champions" when they fail to defer to a state policy choice that the editorialists like.

Consistency about federalism does not demand that you lean toward the states in every case, it means that you have a principle about what can be done at the national level and what must be left to the states.

A principled version of federalism, which would often favor state autonomy, can acknowledge a basis for federal power when Congress seeks to control the market in a particular product and decides to reach down to the smallest components of what is an interlocking web of activity. In Wickard, an attempt to stabilize wheat prices included a farmer's cultivation of wheat that he consumed on the farm. In the medical marijuana case, the Controlled Substances Act reaches home-grown, home-consumed marijuna (even if it is used medicinally). There really is a principled distinction between cases like that and Lopez and Morrison, where the Court found the Congress's commerce power did not support a federal enactment. Lopez and Morrison involved disconnected, local activities that did not interlock with a nationwide web of transactions.

Moving the Barnes collection.

A judge has ruled that the Barnes art collection may be moved from the suburbs to the city of Philadelphia.
"Dr. Barnes would never have imagined the constraints the foundation is currently facing." Barnes described the foundation as a place for "plain people, that is men and women who gain their livelihood by daily toil," she said. By moving the collection from an affluent suburb to downtown Philadelphia, she said, more of those "plain people" will be able to enjoy the art.

This case is great fodder for law types of the Trusts & Estates stripe. Art people care a lot about the case from the aesthetic standpoint. Back in February, I wrote about the Barnes collection and the argument against moving it here.

UPDATE: Be bemoans the court's decision.

A Madison oil change.

With scheduled exam activity done, I take my car over to Zimbrick for an oil change this morning. The more free-form activity of grading the exams remains ahead, but the exam-writing, review sessions, and proctoring are all accomplished. Exam grading time is a good opportunity to accomplish assorted errands and to do various things I've put off, like finishing hanging those blinds, cleaning the house, and rearranging the furniture. These undesirable tasks become breaks from the hard work of grading.

So here I am at Zimbrick. Hoping there'd be wi-fi, I brought my computer. Too late I realized Zimbrick has Ethernet outlets. I should have brought a cable. Ah, well, I have the paper New York Times, which I read, taking notes on things I want to blog about later. I do the crossword puzzle. I notice the cute kids' room near me, with a Disney TV. It has two mouse-ear style speakers on top.


The room is nicely glassed off, so kids can have fun, stay put, and not bother the staid old newspaper readers like me. Next to the kids room is a glassed off TV room for adults. I hate TVs in waiting rooms, because I always bring something to read. Nice to make a separate room for the TV.

So I sit here, at a nice table. See the flower vase? It's a bit like the flower vase in a New Beetle.


I read the paper and note four things to blog about later.

UPDATE: An emailer writes:
Prof. Reynolds blogs from the tire shop, now you... tire-blogging the Next Big Thing?

Only if it makes Andrew Sullivan talk about me.

December 13, 2004

The Peterson jurors.

I had the TiVo set up to record "Special Report with Brit Hume," a news show I like, and it picked up the press conference with three of the jurors in the Peterson case, I discovered when I came home today. Chris and I had gone out and to buy a Christmas tree--a small one--we got the guys to tie it to the roof of the Beetle, then we stopped for some dinner at the Griglia Tuscany. We drove home carefully with the tree sliding around on the roof, and I went inside to get some scissors to cut the twine that held the tree to the car. In the dark, I managed to snip the end off the thumb of my leather glove. Ack! I whine, then I fix on the belief that this impulsive mistake will teach me a deep lesson that will save me from some dire action that I would otherwise make in the future.

We set up the tree, and I was I putting away some dirty dishes and half-listening to the jurors' press conference. At some point I was overcome with admiration for these people, who had devoted so much time and energy to the trial and were so thoughtful and sensible and human. Earlier today, I'd read that the verdict was coming out, and I'd started checking, surprised to find myself so concerned about the outcome of the long, over-hyped trial.

Years ago, I felt quite passionately opposed to the death penalty, but I hadn't focused on the issue much lately, and I didn't know if my opposition to the death penalty was still in place. But when I clicked on a website and saw the word "death" under Peterson's picture, I cried out in revulsion. Yes, I do think the death penalty is wrong. How can we think it is acceptable to put a captured, caged man to death? Just coldly, deliberately kill a man?

I admire the jurors and think they did their job properly. Their outrage at the defendant is justified. Nevertheless, quite without meaning to, I found myself reaffirmed in opposition to the death penalty.

Cohen's koans.

Should we be writing our own Zen koans? Richard Lawrence Cohen says yes, and offers up his own un-pre-chewed parables, anecdotes, and other short provocative writings in a new blog--a really new blog. Like, today-new.

Full disclosure: RLC is my ex-husband.

UPDATE: An emailer writes:
I am unfamiliar with your circumstances and hazard an opinion that if RLC left to find enlightenment, he didn’t see that it was there all along, sitting at his kitchen table talking to him.

Interesting ideation, but wrong on so many points. We never even had a kitchen table.

Anyway, what's cool about koan-blogging (Cohen-blogging) is that, with the comments turned on, you get to see some answers. And people are pretty damned good at answering!

The Pretenders.

I see the new inductees to the Rock and Roll Hall of Fame have been announced, and it's nice to see the Pretenders make it, along with others, including the obvious choice, U2.


I'm frazzled today. I needed to get my exam written so it could be printed up in time for the scheduled hour today, 1:30. I had gotten almost no sleep on Saturday night and spent Sunday morning proctoring my Religion and the Constitution exam, and I did not think it wise to work on the Civil Procedure exam while proctoring. At noon, there was a CivPro Q&A session. I spent the afternoon and evening writing the CivPro exam, up to the point where it just needed some polishing, proofreading, and formatting--maybe an hour's work--and it seemed best to leave it until morning.

As I was getting ready for work, I thought about how awful it would be if my computer behaved badly. I emailed my draft to myself from home and drove to work. I opened my email attachment, worked on the draft for an hour, saving very frequently, and then Microsoft Word quit on me. Opening the draft again, I saw it had gone back to the email attachment form, refrained from wasting any time freaking out, and redid the previous hour's work, again saving frequently. Microsoft Word crashed again! To my horror, it had again reverted back to the email attachment form. I had lost all the work again! What a nightmare!

Well, I did keep my wits about me and get it done, and the students are taking it now. No one has come up to point out some oversight. I hope all is well. The students are taking the exam in two different rooms, so I did not want to proctor. It doesn't seem right to me for one group to have the teacher there and the other group not to. Whether it's good or bad to have the teacher in the room is debatable. It could be convenient if you have a question, but it could be annoying. In any case, it's different, and it's better for the conditions to be the same.

Nevertheless, I am here in the building, and if there were a problem I would hear about it. So round about now I should be getting unfrazzled. But I'm still waiting for the defrazzlement to set in.

UPDATE: Several people have suggested that I handle the email attachments differently when I open them up in Word and edit them. I'm going to take additional steps next time, but I've got to say, I bought Microsoft Office (OS X for the Mac), and I use their email program, Entourage. If Word and Entourage can't play nice together, what the hell is the point of Office?

Liberals, the Supreme Court, and federalism.

Dana Mulhauser writes in TNR about liberal distress at the prospect of a Rehnquist retirement (which is "widely believed" to be "imminent").
But instead of worrying about what they've got coming, liberals should take a moment to regret what they're about to lose. Rehnquist, it turns out, may be retiring just when liberals need him most. In a government and a judiciary dominated by activist conservatives, Rehnquist's vision of states' rights and a limited federal government might have been the best way during the next few years to keep beleaguered blue states beyond the reach of red-state values.

Mulhauser thinks federalism might have served the interests of liberals, and that only Rehnquist really made federalism his cause:
It is Rehnquist and only Rehnquist who has been the driving force behind the Court's sudden solicitousness towards states' rights.

Scalia, Mulhauser writes, only really champions originalism and Thomas, only textualism. Of O'Connor and Kennedy, Mulhauser says nothing. Nor does Mulhauser have a word to say about Rehnquist's own lack of regard for federalism values in Nevada Department of Human Resources v. Hibbs.

The notion that Rehnquist is uniquely strong on federalism doesn't seem quite right to me. It's true that the different Justices have their own methodologies of interpretation and that Rehnquist's federalism, as opposed to Scalia and Thomas's, has more to do with an actual appreciation for the positive value of decentralized decisionmaking--it's more pragmatic and normative. But the same can be said of Justices O'Connor and Kennedy's federalism. Kennedy, notably, stood staunchly by federalism values in Hibbs, when Rehnquist bent to the popularity of the federal Family and Medical Leave Act. And O'Connor showed more interest in federalism values than Rehnquist in South Dakota v. Dole, the most important case about the crucial matter of imposing conditions on federal spending (there, pressuring the states to adopt 21 as the drinking age).

As to Scalia, I remember the time a few years ago that he gave a speech at my school. He made his theory of original interpretation his subject, as he often does, and took pains to refute the label "strict constructionism," which people (including President Bush) wrongly stick on him. With a chance to ask a question, I invited him to take a position on two other things often associated with him: judicial restraint and federalism. As I expected, he restated the point that the Constitution means what it means and must be enforced whatever it is, without any leaning caused by these other forces. Notably, he responded first on judicial restraint, and then had to ask what the other thing was. Prompted, he went into an irrelevant prerecorded loop about how the original Federalists were for strong national power and how the Federalist Society got its name. He did not seem interested in federalism at all!

Nevertheless, strong originalism (or strong textualism) often gets you to more state and local autonomy than the more flexible, pragmatic approach taken by Rehnquist (and O'Connor and Kennedy). So it's just not at all as simple as Mulhauser would have it.

UPDATE: I've corrected the case name South Dakota v. Dole, which somehow, despite having taught it fifteen times, I managed to call South Carolina v. Dole. Thanks so much to my great 1L son John Cohen for pointing that out.

I wasn't going to post about the Golden Globe nominations.

But then I got to the very bottom of the list and saw something that made me want to comment: William Shatner got an acting nomination?

UPDATE: You might guess that I'm getting some email from Shatner fans, who say he really is good on "Boston Legal." One sends this great link about his "Has Been" record. Anyway, I don't watch "Boston Legal" or any other lawyer shows. I'm just not interested in TV network dramas. I have no idea if they are good or bad, and I'm willling to believe Shatner plays a good lawyer. I saw Shatner in some TV commercial recently and thought he was really funny. I have nothing against the man!

Another exam day.

I arrive at the Law School at 8 a.m., and the atrium is teeming with students.
I'm almost done my Torts outline.

I haven't even begun to think about Torts. It's two exams away!

Take a look at a Torts exam. It's frightening!

And so the tradition of first year law students stirring each other up continues.


The NYT reports on Pentagon debates about the use of disinformation to "influence opinion abroad," which could involve "deceptive techniques endorsed for use on the battlefield to confuse an adversary and adopt them for covert propaganda campaigns aimed at neutral and even allied nations." As the Times suggests, information purveyed in some strategically chosen overseas location is not going to stay put: "in a modern world wired by satellite television and the Internet, any misleading information and falsehoods could easily be repeated by American news outlets."

Obviously, we are concerned about how the enemy's false information is used to manipulate public opinion:
"In the battle of perception management, where the enemy is clearly using the media to help manage perceptions of the general public, our job is not perception management but to counter the enemy's perception management," said the chief Pentagon spokesman, Lawrence Di Rita.

Yet telling the truth is intrinsically part of the message that one is fighting for a free society. Lying, you make that message incoherent.

December 12, 2004

A Christmas tree.

I'm terribly late this year buying a Christmas tree. I used to like to buy the tree the day after Thanksgiving, but that was back when I bought it early because I was going to toss it out the day after Christmas, when I would drive the family down to Florida to do a late Christmas with my mother. My mother died some years ago, so I've let the after Thanksgiving tree tradition slip away and become haphazard about how long to leave the tree up after Christmas. In my family growing up, we used to put up the tree on December 16th, which was my mother's birthday. (It's also Beethoven's birthday.) One thing that keeps me from thinking I'm horribly late with the tree this year is that it's still not the 16th.

This year, I want a small tree. Why do people want really big trees? It's as if they see the ceiling as a challenge, or they like to get up on a ladder. Nowadays, the trees are too perfect. I see everyone wants Fraser firs because Martha Stewart endorsed them. I always bypass the Frasers and go for the balsams, which I've always assumed people preferred. They are the ones that smell like Christmas trees. They are rejected now, I see, because the Frasers have a thick and bushy "perfect" silhouette. And they hold onto their needles. I'm opposed to that. First, part of the excitement is in the needle shedding. And part of the fun is the imperfection of the shape. You should have a lot of gaps to fill in with ornaments.

Back in the 1950s and 60s, nearly everyone got a balsam pine tree, and they were always asymmetrical and much sparser than today's trees. There was a lot of strategy to deciding which part to face toward the wall, and when you went to someone's house you could talk quite a bit about the shape of the tree. You got a really nice tree meant something back then, when a fair amount of hunting was involved. Now that they are all nice, I'm going to hunt for one that is as sparse and asymmetrical as I can find.

UPDATE: Sarah writes to say that December 16th is also Jane Austen's birthday. Excellent birthday! Too close to Christmas to be desirable (for those in the Christian tradition). My own birthday is also too close to Christmas, though, and the only famous person I share it with that I know of is Rush Limbaugh (same year too!). Well, let me check: I see I also share with Rob Zombie, Jeff Bezos, Howard Stern, Joe Frazier, Tex Ritter, and Jack London. A real guy day, apparently.

Speaking of birthdays: today is Frank Sinatra's birthday.

ANOTHER UPDATE: An emailer notes that "Wikipedia is awesome with dates" (an email subject line with a spammy tone to it). Here's December 16th, with more birthdays than the link I used, plus famous events and deaths that occurred on the day.

YET ANOTHER UPDATE: An emailer explains why the trees of today look too "perfect":
I used to grow Christmas trees in Canada -- Balsam fir, of course. The 'perfection' about which you speak is a result of pruning techniques rather than being related to species. As the tips of the branches are repeatedly cut with a machete-like tool two side branches grow out. The next year their tips are lopped, and it's lather-rinse-repeat until you've got one of those near-perfect cones ... which I detest.

So, basically, you're buying a big pruned shrub. It's just not tree-like anymore.

When I bought my house, there were immense, ball-shaped evergreens on either side of the front stoop. Despite all sorts of work that needed to be done on the house inside and out, we devoted many hours to cutting these things down and digging out the stumps. I find over-pruning quite ugly. I have a leafy hedge around my front yard, and I keep it trimmed with hand clippers. When people walk by and snicker about power shears, I have to struggle not to growl at them.

Dean on Scalia.

Howard Dean was on "Meet the Press" today, and Tim Russert brought up the statements Senate Minority Leader Harry Reid made last week about Justice Scalia. (Unfortunately, Russert did not question Dean about Reid's much-criticized statements about Justice Thomas.)
MR. RUSSERT: Harry Reid, the new leader of the Democrats, was on the MEET THE PRESS last week, and he said he would be open to Antonin Scalia being appointed chief justice of the Supreme Court. There may be some ethical problems, he said. If he could get by those, he was very much impressed by the brilliance of his mind.

DR. DEAN: Well, first of all, I like Harry Reid a lot. He's a straight shooter, and I think he's going to be a good leader. I disagree with him on this one. I think Antonin Scalia ought not to be on the Supreme Court let alone chief justice because I think he lacks judicial temperament.


DR. DEAN: Because when you--and I have appointed a great many judges as my career as governor--the second thing after a work ethic that you look for when you're appointing a judge or a justice is judicial temperament. That means--in our judicial system, it's very important for the loser and/or the winner in any case to be--to feel like they've been treated fairly and respectfully by the court system. That's what is the glue that binds us together as a society. When you are sarcastic and mean-spirited, as the justice often is from the bench, it leaves the losing--the loser in that case feeling as if they were not respected by the judicial system, and that's why you don't put people with bad temperament on the--on any court, and I certainly don't think they should be on the Supreme Court of the United States.

MR. RUSSERT: When specifically was he mean-spirited or sarcastic?

DR. DEAN: You've seen many, many times. I don't have a specific time, but you could go read almost any oral argument in the last year and find sarcastic, mean-spirited remarks from the justice in those arguments.
I'm glad Russert asked a follow-up question this time. Last week, Russert had no follow-up when Reid said "I think that [Justice Thomas] has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice." It would have been so easy to stump him by asking for some examples of poorly written Thomas opinions.

But I guess Reid could have said "There are many, many poorly written opinions. I don't have a specific case name, but you could go read almost any of his opinions in the last year and find poorly written sentences in any of those opinions."

Am I criticizing Russert for not asking yet another "be specific" question to Dean? Not really. I think it's apparent to most thoughtful persons that Dean had no specific examples.

It appears that the Democrats are developing their message about Scalia. Last week, with Reid, it was the "ethical problem," and now the subject of character has been widened into the "lack of judicial temperament" issue: he's a mean man.

Last chance.

Today is your last chance to vote in the Weblog Awards. Feel free to give me a boost over there, lest I fall to sixth place after a long stay in fifth. Do I deserve a vote in the Best Conservative Blog category? Check it out, I just said two nice things about Nixon!

''Whenever possible tell the whole story of the novel in the first sentence.''

That's John Irving's writing advice.

In that light, and speaking of Richard Nixon, I've always remembered the first line of his memoir: "I was born in the house my father built."

"More cultivated than Kennedy, more cosmopolitan than Johnson, more intelligent than Reagan, more disciplined than Clinton."

That would be Nixon, according to this review of the book "Nixon at the Movies."
John Ford was his favorite director, and among the several classics he viewed were ''Vertigo,'' ''The Maltese Falcon,'' ''Rio Bravo'' and ''Citizen Kane.'' (Is there anyone who would be more interesting to talk to about Charles Foster Kane than Richard Nixon?) He watched filmed treatments of ''Hamlet,'' ''The Sea Gull'' and ''War and Peace,'' pictures, [author Mark] Feeney suggests, that John Kennedy, the James Bond enthusiast, would probably have walked out on.

Don't miss the illustration at the link.

Nubbins, Snubbins, Droopers or Super Droopers.

That's what cup sizes were called in the early days of the brassiere, before some marketing genius came up with A, B, C and D.

Suspicions of poison.

So Ukrainian presidential candidate Viktor Yushchenko really was poisoned:
Yushchenko fell ill Sept. 6, a day after having late-night food and drinks with the head of the Security Service of Ukraine, among other people. Yushchenko's wife, Kateryna Chumachenko, said she noticed a strange taste on his lips when she kissed him that night.

"I tasted some medicine on his breath, on his lips," she said on ABC's "Good Morning America." "And I asked him about it. He brushed it away, saying there is nothing."

I wonder what effect this news story will have on people who have suspected that Arafat was poisoned.

"My expectations were reduced to zero when I was 21. Everything since then has been a bonus."

Stephen Hawking, interviewed by Deborah Solomon. He doesn't know his own IQ and thinks people who boast about their IQs are "losers." He thinks Bush's plan to send a man to Mars is "stupid." He likes the enthusiasm Americans have for everything, including science.
How can you say that? Just last month a Gallup poll found that only 35 percent of Americans accept Darwin's theory of evolution, while 45 percent prefer the creationist view.

Maybe it is because people in America have less sense of belonging to a tradition and culture than in Europe, so they turn to fundamental religion.

Religion as a history substitute. Hawking doesn't believe in a "personal God."


Today is a day full of exam thoughts. I went to sleep thinking about how to write my second exam and woke up at 3 a.m., still thinking about it. I'm scheduled to proctor my first exam this morning at 8:30--yes, a Sunday morning. The class is Religion and the Constitution, and students have repeatedly pointed out the irony of giving an exam in the Religion and the Constitution class on a Sunday morning. Last night was the big Law School Christmas party, held at an extravagant Art Deco-themed house on Lake Mendota. The array of food and drink amazed. People spend hours doing things like candying orange and lime slices and deep-frying turkeys. A grand piano played holiday tunes automatically. There were lots of faculty and faculty family, including many cute kids dressed up in holiday clothes.

I got a ride from someone who needed to leave early, and I said I didn't mind leaving early, because I haven't finished writing an exam that's scheduled for Monday at 1:30, and I'm proctoring my other exam at 8:30 Sunday morning. "Why are you proctoring your exam?" she asked. "Well, that's a different question," I said, not interested in exploring that angle. The fact is, I've agreed to do it. I guess proctoring one's own exams must not be that common around here anymore, but it's too late to worry about that now. I'm scheduled to proctor and proctor I will. Half an hour after the proctoring's over, I've got a question and answer session scheduled for the class that has the Monday exam. If they read my blog, they will know that I've been up since 3 a.m. and that I went to a party the night before. They will also know I have not yet written the exam.

Ah, well, it's only 6:15. Still two more hours before the Religion exam. There's time enough to make quite a lot of headway on the CivPro2 exam if I just do it. Do I deliberately wait until the flames of deadline are licking at my heels? Much as I hate the pressure, I have learned from too many years of experience that the deadline unleashes powers of concentration and creativity that I can't just call into service at will. There are many days when I mean to do a task and can tell that my mind has a mind of its own, preventing me from starting, refusing to work until the point when the deadline unlocks its otherwise unreachable power.