November 7, 2007

SoHo sunset.


Danforth v. Minnesota — a correction.

I've made a correction to this old post about Danforth v. Minnesota, the case about the retroactivity of federal constitutional law doctrine in state courts. In the post, I quote a passage that is from the state's brief, and I misidentified it as coming from the state court. The court sided with the state, and, for reasons I explain in that post and this later one about the oral argument in the U.S. Supreme Court, I think the state court got it wrong. But the court did not write the passage I found so interesting (though "a jumble" and "poorly written").

Can a state require a private employer to accommodate an individual who is violating federal criminal law?

Here's a great case about the intersection of state and federal law. (Via How Appealing.) Gary Ross was fired because he failed a drug test, but he was using marijuana medicinally in California, which has legalized the use of medical marijuana. Marijuana is, nevertheless, banned by the federal Controlled Substance Act, and the U.S. Supreme Court made it clear that the states lack the power to carve out exceptions to that act. So Ross was fired for doing something that is a federal crime, but not a state crime.

Ross is suing his employer, Ragingwire Telecommunications Inc., for discriminating against him for his disability, and he's using state anti-discrimination law. So the question before the California Supreme Court — argued yesterday — is the effect of the medical marijuana law. Does the Compassionate Use Act just mean the state can't criminally prosecute medical marijuana users, or does it mean that private employers can't fire them for using marijuana (and violating federal criminal law)?
The state's voters intended to allow medical marijuana users "to fully participate in life regardless of any potential disability," Stewart Katz, a lawyer for Ross, told the court during Tuesday's hourlong hearing in Sacramento. That includes having a job, he said.

But several justices noted that although Prop. 215 protected medical marijuana users and their caregivers from state criminal prosecution, it never mentioned the workplace.
It's a tough state law question. Did the Californians who voted for the initiative that led to the Compassionate Use Act think about much more than the basic mercy of sparing medical users criminal prosecution? Was there any discussion at the time about imposing new duties on private businesses to accommodate drug users?
An employer who hires a medical marijuana user is "arguably being complicit in an activity that's illegal under federal law," RagingWire's lawyer, Robert Pattison, told the court. He said the state law that requires employers to offer reasonable accommodations to the disabled shouldn't be interpreted to require accommodation of illegal drugs.
I wonder whether, if Ross wins in the California Supreme Court, there is a federal question for the U.S. Supreme Court. Can a state require a private employer to accommodate an individual who is violating federal criminal law?

I'm back in New York City, but...

Here's a San Francisco flower:


"Michael Mukasey... is absolutely correct... that the issue of 'waterboarding' cannot be decided in the abstract."

Writes Alan Dershowitz.
Under prevailing [constitutional law] precedents--some of which I disagree with--the court must examine the nature of the governmental interest at stake, and the degree to which the government actions at issue shock the conscience, and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process.

The members of the judiciary committee who voted against Judge Mukasey, because of his unwillingness to support an absolute prohibition on waterboarding and all other forms of torture, should be asked the direct question: Would you authorize the use of waterboarding, or other non-lethal forms of torture, if you believed that it was the only possible way of saving the lives of hundreds of Americans in a situation of the kind faced by Israeli authorities on the eve of Yom Kippur? Would you want your president to authorize extraordinary means of interrogation in such a situation? If so, what means? If not, would you be prepared to accept responsibility for the preventable deaths of hundreds of Americans?
Dershowitz's point is that the Democrats will lose the next election if they're perceived as soft on national security.

Why is Pat Robertson endorsing Rudy Giuliani?

It seems rather strange. Anti-Mormonism?

MORE: Here. Robertson says:
To me, the overriding issue before the American people is the defense of our population from the blood lust of Islamic terrorists. Our second goal should be the control of massive government waste and crushing federal deficits. Uppermost in the minds of social conservatives is the selection of future Supreme Court justices and lower court judges who will sit in both the federal circuit courts and the district courts....

[Giuliani] proved time and again that he is a true fiscal conservative. Rudy served as a high official in the justice department of Ronald Reagan, and later as a United States attorney, won acclaim as a valiant crime fighter. Justice triumphed as he took down mafia dons, drug traffickers and corrupt politicians. He understands the need for a conservative judiciary and with the help of the distinguished Ted Olson, who is here today, and other members of his team, has assured the American people that his choices for judicial appointments will be men and women who share the judicial philosophy of John Roberts and Antonin Scalia.

"Being overweight but not obese was associated only with excess mortality from diabetes and kidney disease..."

"Excess mortality"... what a weird phrase. I prefer the locution "insufficient immortality." But I suspect, reading this WaPo article on new research showing it's not that unhealthy to be fat, that all of us — fat, skinny, or just right — have exactly the same mortality and whether it's "excess" is a matter of opinion.

But the article is not about whether it would be good to live forever. It's about whether we're going to die sooner if we're fat.
The researchers calculated that in 2004, obesity was associated with as many as 112,000 excess deaths from heart disease and more than 45,000 deaths from diabetes and kidney disease. Obesity was not, however, associated with an overall excess in cancer deaths, though it was linked to as many as 19,000 excess deaths from malignancies commonly blamed on fat, including breast, uterine, ovarian, kidney, colon, esophageal and pancreatic cancer.

The most surprising finding was that being overweight but not obese was associated only with excess mortality from diabetes and kidney disease -- not from cancer or heart disease. Moreover, the researchers found an apparent protective effect against all other causes of death, such as tuberculosis, emphysema, pneumonia, Alzheimer's disease and injuries. An association between excess weight and nearly 16,000 deaths from diabetes and kidney disease was overshadowed by a reduction of as many as 133,000 deaths from all other deaths unrelated to cancer or heart disease. Even moderately obese people appeared less likely to die of those causes.

Although the study did not examine why being overweight might guard against dying from some diseases, [Katherine M. Flegal, a senior research scientist at the Centers for Disease Control and Prevention in Atlanta] said other research has suggested that extra heft might supply the body with vital reserves to draw upon to fight illness and aid recovery.

"You may not just have more fat. You may also have more lean mass -- more bone and muscle," Flegal said. "If you are in an adverse situation, that could be good for you."
This is similar to those studies that show a moderate amount of drinking is good for you (though heavy drinking isn't). People who disapprove of drinkers or fat people want to believe it's also very unhealthy. They are collecting more arguments for what they already think. Those who are modern and liberal don't want to express old-fashioned moral disapproval, so they won't say drinking or eating too much is self-indulgent and gluttonous. Pleasure-seeking is quite all right these days. And they want to be able to think of themselves as good people, so they can't just say they hate the way you look if you're fat. They have to believe they're actually concerned for your well-being.

But we all know we'd look better at our ideal weight. Each of us needs to make a personal decision about how much pleasure in eating we'll give up for the pleasure of looking our best. The anorexics love the dictum: Nothing tastes as good as thin feels. But that's a matter of opinion. Some chocolates and pasta dishes and deep-fried things taste as good as thin feels. But maybe no oversized portion of anything feels good enough to outweigh how bad fat feels. Make up your own mind.

What does it take to get a real cup around here?

If I go to a café and sit down with a cup of coffee, I want a real cup, a ceramic cup, not a paper cup. I'm paying $4 for an aesthetic experience and part of it is the feel of the cup, in my hand and on my lips. When I say "for here," I mean in a real cup. It's not hard to understand. Yet time and again, it turns out that they're out of cups. Why is that? They're running a café — invariably a Starbucks — yet they either failed to lay in an adequate supply of cups or they can't — or won't — keep up with the dishwashing.

Today, I ordered a "venti" latte at Starbucks, said "for here," handed over my money and received my change, only to be told that they're out of venti cups. Then size it down to a grande, I say.

I want the real cup more than I want the extra coffee. And I want to teach them a lesson: If you don't have a cup for it, I don't want it.

This led to minutes of confusion as they tried to figure out how to refund the price difference. The line backed up behind me, and I finally got what turned out to be only 33¢. They didn't hide their irritation, but I hid mine.

Until now.

I remember one time some kids had a lemonade stand, and they ran out of cups. They didn't want to lose the sale, so they said "Cup your hands!" That was at least funny. And they were just kids.

Hey, Starbucks! Have some damned cups for the product you charge so much for!

And if you don't have a cup for a customer who says "for here," you can say: I'm sorry, we ran out of cups. How embarrassing. We'd like to apologize by giving it to you in a paper cup for free. And here's a coupon for a free coffee in a real cup next time.

Conservative authors sue the parent of Regnery Publishing over its deep-discount book club scheme.

The NYT reports. As if Regnery would have all those big best-sellers if they sold their tracts at full cover price in bookstores. Who are the plaintiffs? (They'd better not be scribes of the too-much-litigation genre.)
Jerome R. Corsi, Bill Gertz, Lt. Col. Robert (Buzz) Patterson, Joel Mowbray and Richard Miniter state that Eagle Publishing, which owns Regnery, “orchestrates and participates in a fraudulent, deceptively concealed and self-dealing scheme to divert book sales away from retail outlets and to wholly owned subsidiary organizations within the Eagle conglomerate.”...

“They’ve structured their business essentially as a scam and are defrauding their writers,” Mr. Miniter said in an interview, “causing a tremendous rift inside the conservative community.”
A scam? A fraud? Did you not read the contract? Did you not see the structure of the business you were dealing with? Does this litigation demonstrate conservative principles?

Are you familar with the writings of Corsi, Gertz, Patterson, Mowbray and Miniter? Regnery made "best sellers" out of their books, but no doubt they're sad they haven't raked in as much as, say, Ann Coulter — who has published with Regnery and then gone on to other publishers and other contracts and is not among the plaintiffs.
[T]he publisher sells books to sister companies, including the Conservative Book Club, which then sells the books to members at discounted prices, “at, below or only marginally above its own cost of publication.” In the lawsuit the authors say they receive “little or no royalty” on these sales because their contracts specify that the publisher pays only 10 percent of the amount received by the publisher, minus costs — as opposed to 15 percent of the cover price — for the book.
Suggested titles for new conservative books by Corsi, Gertz, Patterson, Mowbray and Miniter: "A Deal Is Not a Deal," "Contracts Are Theft," "How Courts Can Help Americans Get the Money They Deserve."

Miniter said:
“It suddenly occurred to us that Regnery is making collectively jillions of dollars off of us and paying us a pittance.”
Aw, what's a conservative to do? Get a new publisher — or litigate for the deal you forgot to negotiate for? Should you suffer — while someone else profits — just because it only — suddenly! — occurred to you much later that — if the book were a big seller — you'd be jealous of the money made by the publisher that made it a big seller for you?
[Miniter] added: “Why is Regnery acting like a Marxist cartoon of a capitalist company?”
Why is Miniter sounding like a Marxist?

November 6, 2007

The travel-weary vlog.

IN THE COMMENTS: I agree to do a totally naked vlog for $1000! So start hitting the PayPal button.

Suing the architect.

The building is incredibly cool, a showpiece. Check out these pics of the Stata Center at MIT, designed by Frank Gehry. But MIT is suing, "charging that flaws in his design... one of the most celebrated works of architecture unveiled in years, caused leaks to spring, masonry to crack, mold to grow, and drainage to back up."

Do you want a wild and crazy building dreamed up by an artist? Stop and think whether all the less strange buildings look the way they do for a reason.

Negative space.


I liked the way the distinctive cornices in San Francisco drew a line on Saturday's bright blue sky.





How secretly nervous Democrats were, even as they pretended to laugh along with Colbert.

They act like they have a sense of humor, but "there was no way that Obama, whose campaign is focusing heavily on getting young people to the polls, would let a joke candidacy—even a funny one—get between him and the nomination."

An Althouse coffeehouse.

I think I'm going to declare this an Althouse coffeehouse and let you guys take over for a while. I'm back in NYC after taking the red-eye from SF. The flight back wasn't 6-hours as it was flying there. It was only 4+ hours. I think maybe I caught 2 hours of sleep, but I have a 4 o'clock class, so I'm thinking: nap.

Talk about what you like but feel free to give me some vlog ideas. My MacBook camera healed itself somehow, and I'd like to do a vlog... if I can restore my weary self with a little sleep.

UPDATE: I got 2 more hours of sleep, so that makes 4 hours. I have this theory that if you just get 4 hours, you'll be okay. Also, I adjusted the time stamp on the previous post so this post would come out on top, since it was written after that one (which I started writing last night at SFO and couldn't finish before Delta called my zone). I have just one thing I really need to accomplish today — a class about Tarble's Case and Howlett v. Rose — that is, federal procedural law limits on state courts enforcing federal law.

Jeffrey Rosen made quite a few errors in his NYT Magazine article about John Paul Stevens.

Justice Stevens had to write a letter to the magazine to say that:

1. He did not help break the Japanese naval code in WWII.

2. He did not —after his clerkship — have an offer to teach at Yale Law School.

3. Contrary to Rosen's assertion that when he returned to Chicago, he joined with "moderate and good-government Democrats, who were opposed to the corruption of the Daley machine," he was "never active in politics," Daley wasn't yet mayor, and he's "never suggested that the Daley machine was corrupt.

But I could not find this letter, which appears on page 12 of the paper magazine, through a search on the NYT website. I did find the original article — to which is appended a correction:
An article on Page 50 of The Times Magazine this weekend about Justice John Paul Stevens misstates the university from which he received his undergraduate degree. It was the University of Chicago, not Northwestern.
These are only the outright mistakes of fact. If there is any slanting and skewing, you're on your own.

UPDATE: Eventually, the letter appeared on the website: here.

November 5, 2007

"Unforgiven: Why is Clarence Thomas so angry?"

That's the title of this Jeffrey Toobin piece in The New Yorker. I don't think that's a very accurate title and suspect his editor was hot to spread the Thomas-is-angry-meme. What concerns Toobin is Thomas's attachment to conservative politics. Here's the concluding paragraph (which you can see isn't about anger at all):
The tenor of Thomas’s memoir, as well as his judicial record, suggests that he will continue to display his brand of “courage”—that is, to serve the interests of a conservative élite, and hearten Vice-President Cheney and his ideological kin with his exhortation “Be not afraid.” As Thomas has often said, it is a credit to the country that a man from Pin Point can be given the opportunity to serve on the highest court in the land. “As a child, I could not dare dream that I would ever see the Supreme Court, not to mention be nominated to it,” he said on the day he was selected. There is less to celebrate in the way that Thomas has used the opportunity to speak power to truth.

Waiting for the red-eye flight back to NYC.

I need to get what will count as my full night's sleep on a 6-hour flight that's starting soon. Any tips on how to sleep on a plane?

A view from the beach...


... where the seaweed looked....


... like a dead ostrich.

"We are not building a GPhone."

"We are enabling 1,000 people to build a GPhone."

ADDED: William Saletan explains:
Old cell business model: Charge monthly fees. Microsoft model: Sell the software. Apple model: Sell the phone. Google model: Give away the software; sell ads. Google's promises: 1) Better Web browsing and other software. 2) Lower fees and cheaper phones, because the ads provide the revenue. 3) More innovation and customization. Critiques: 1) The announcement is all hype, no product. 2) It'll take forever to be produced, become commercially available, and penetrate the market. 3) Yes, we are all individual … Google pawns. Upside: Your phone will work just like a PC! Downside: Your phone will be buried in ads, just like a PC.

A reincarnation of Vishnu...

... but "she cannot live like this."

Religion and science can coexist.

The beach looks like the set for a Beckett play.


Wasn't there anyone there on that beautiful Sunday?


There were this many lovely people (and doggies)!


It was very mellow in Bolinas yesterday:


"If the gender game worked when Rick Lazio muscled into her space, why shouldn’t it work when Obama and Edwards muster some mettle?"

"If she could become a senator by playing the victim after Monica, surely she can become president by playing the victim now."

I'm just getting around to reading Maureen Dowd's Sunday column. It's rich.
When pundettes tut-tut that playing the victim is not what a feminist should do, they forget that Hillary is not a feminist. If she were merely some clichéd version of a women’s rights advocate, she never could have so effortlessly blown off Marian Wright Edelman and Lani Guinier when Bill first got in, or played the Fury with Bill’s cupcakes during the campaign.

She was always kind enough to let Bill hide behind her skirts when he got in trouble with women. Now she deserves to hide behind her own pantsuits when men cause her trouble....

There is nowhere she won’t go, so long as it gets her where she wants to be.
Dowd has always paid attention to truth about the Clintons and feminism. I've really appreciated that.

“Intensive questioning works."

"If I didn't use intensive questioning, there would be a lot of Mafia guys running around New York right now, and crime would be a lot higher in New York than it is."

Rudy Giuliani says.

John McCain says: "When someone says waterboarding is similar to harsh interrogation techniques used against the mafia in New York City, they do not have enough experience to lead our military."

Is "experience" the real issue here? On experience, Giuliani has his standard — and effective — comeback: McCain "has never run a city, never run a state, never run a government. He has never been responsible as a mayor for the safety and security of millions of people, and he has never run a law enforcement agency, which I have done."

The real concern is human rights and constitutional rights. What techniques did Giuliani use against Mafiosi when he was U.S. Attorney? Presumably, he rigorously adhered to constitutional law. If he didn't, I want to hear about it.

But to the extent that Giuliani is asserting that intensive questioning works, he's not saying that all techniques are the same. McCain knows that. You can tell because he uses the weasel word "similar": "When someone says waterboarding is similar to harsh interrogation techniques used against the mafia...."

McCain's quote, read carefully, is pretty much of a non sequitur. Intense interrogation, physical discomfort, things that approach torture, outright torture — these things are all on a continuum and the question where to draw the line is important. That is, these things are different in that some will be on one side of the line and some will be on the other. But they are also similar in that they are on a continuum and that they have to do with the observation that harsh interrogation is effective.

What does this have to do with "experience to lead our military"? All I can see there is McCain obliquely reminding us that he served in the military and he was tortured. That gives weight to his insistence that the United States must never engage in torture, but does it engage with Giuliani's point or talk right past it? It's muddled, but what I divine from it all is that when it comes time to draw the line on the continuum and say at what point the United States will stop, Giuliani will allow more. This isn't a difference in experience. It's a difference in balancing national security and compassion for the individual.

Video of Giuliani:

Impression: sunrise.

The view, right now:


For comparison: last evening:


Today at Stanford Law School: "How Blogs Impact Legal Discourse."

I'll be on this panel at Stanford today, along with Larry Solum, Eric Goldman, David Friedman, and Joe Gratz. Jonathan Zittrain will be moderating.

If you attend and you're a regular reader here, please try to find a chance to introduce yourself to me and say "hi." It's especially nice when a regular commenter comes forward and a face can be attached to a name, but there's no need to apologize if you read but don't comment.

See you there!

I think I'm also going to be able to make it to "Bay Area Blawgers 2.0," in SF this evening. For more on that go to the Goldman link above. Say hi to me there too. I hope to make some contribution before rushing off to SFO for my overnight flight home.

Should I go looking for law subjects this morning to put at the top of the blog for show? Absolutely not. I blog according to the Althouse Method, established January 14, 2004. I can't imagine the circumstance that would knock me off that track. You get what comes by the Method and nothing can change that.

I saw that some fool blogger thought I blogged about Danforth v. Minnesota last week in anticipation of this panel discussion. I've been a fedcourts lawprof since the 80s, and Danforth is the most interesting fedcourts case since the 80s. The things they say about me. Anyway, if you want to see some hardcore law blogging go look at the Danforth post, and you can click on the tags at the end to see some other law things.

IN THE COMMENTS: Is it okay to use "impact" as a verb in California?

November 4, 2007

A dog nobly stands guard....


Children play in a vertical sandbox...


Out there, alone, a man surfs:


Closer in, surfing seems ancient and decayed:


And the brown sand has the fresh footprint of the dog...


... and a rock from eons ago....

"Oh gee, I can't figure out what I think. Don't pick on me by asking that question! That's a gotcha question!"

"I'm for it... I'm against it... I'm for it and against it. And I want to be your president."

Rudy spoofs Hillary.

ADDED: Here's the video, showing Rudy's spontaneity and humor.


Here's the cool car I got to ride in to see some of the scenery north of the city today:


Let's take a closer look at this car:


This detail — called a scoop — is — I'm told — very special.

Here's that Obama on SNL sketch everyone's talking about.

(Via Ruth Anne!)

Let's take a closer look at that...


... sign.


I'll have more on my beautiful drive north of the city today. But right now, I'm in a bit of a rush and only have time for a little childishness. Oh, wait. From the same beach, take a close look at this:


And here's a closer look at a different iteration of that graffiti:


I certainly hope there's some local politician named Buss. Or perhaps the artist is exhorting us to have sexual intercourse and also to kiss.

And I've been waiting such a long time for Saturday in the park.




A real celebration... Waiting for us all... If we want it, really want it....


This picture is for Maxine.


She wanted to inspect the reverse side of the plate (seen earlier, here).

"Vavro." That would be a good brand name for....

... maybe I shouldn't come right out and say it....

I gaze out my hotel window and think about whether there's enough vortex on the blog today.


I think this is the beginning of a beautiful friendshop.

In the previous post, I remarked on one shopkeeper's disinclination to talk me into buying a hat, compared to "so many sales people [who] have nudged me beyond my initial resistance." But now that I think about it, I think there's a general difference between New York and San Francisco shopkeepers. The culture of shopkeeping is entirely different.

In New York, when you go into a nice store, a salesperson takes charge of your emotional experience. There is no aggressive sales talk, but that is what is so completely psychologically aggressive about it. You are being managed. You feel welcomed, befriended. Suddenly, a beautiful girlfriend (or boyfriend) is shopping with you, talking intelligently with you about the things you weren't really thinking of buying, getting you to feel that a normal part of this friendshop — oops, I mean friendship! — will be a discreet exchange of credit card for shopping bag. You walk out the door, fulfilled, and it won't be until later that you'll wonder why you bought something again. It's like these stores are hypnotizing me.

But that's New York. It's not like that in San Francisco. The people who work in the stores are hanging around, perhaps chatting with each other. They may notice you and say hi, but they don't envelop you and affect your mood. They'll be there to take your money if you choose to buy. But you're on your own. You can look around and leave, and it doesn't seem to matter. How very odd!

I mean, it seems odd to me because I've been under the spell of New York for 75 days.

"I would say, 'Go, Obama, you're black enough for me.'"

I was traipsing about San Francisco yesterday, and, snapping dozens of pictures, I made my way over to Fillmore Street for a little window shopping. I saw this...

... and was struggling against the glare and reflections to frame my shot — and also, idiotically, talking on my iPhone — when a woman — who I now understand to be Ruth Garland-Dewson — swept out of the store and flung herself between me and the picture of Barack Obama.

"Are you trying to take a picture of my man?" she said dramatically.

But she wasn't what I for a second thought she was: one of those shopkeepers who are touchy about having their place photographed. She wanted to come out and talk — about Barack Obama and other things as well. I got off my phone conversation and complimented her on the great shop and asked if she had extra large hats. I love women's hats, but since I need a men's extra-large size, I can never find a woman's hat — aside from something stretchy — that fits. She found me what might have been her largest hat, and it almost fit. You know, I should have bought it! It was ocher-colored with a dark purple spiral — a felt hat with a large brim. I think I would have bought it if she'd tried to talk me into it (as so many sales people have nudged me beyond my initial resistance — it's not very hard).

But she wanted to talk about Barack Obama. Do I like him? Yes! I think he's a good man, and that he would be able to do a lot of good. I added, "But I kind of like Giuliani." That was okay with her, it seemed — so long as I don't like Hillary.

So here's the shop, Mrs. Dewson's Hats:


And here's a San Francisco Chronicle blog post calling Ruth Dewson "a fixture in the African-American community," and quoting her saying "I'm not a Hillary fan."

Here's a Chronicle article about her and her store (and the musical "Crowns"):
She grew up in Paris, Texas, where people always wore hats to church. She grew up making her own hats because, like lots of people she grew up with, she didn't have any money.

"You take a piece of fabric and put some binding inside and put it on your head, adorning it with different flowers, feathers, things like that," she said.

Her favorite hat was a little yellow bonnet with a big bow under the neck, worn with a yellow dress.

"Hats really empower you," she said.
I note that Hillary Clinton doesn't wear a hat — although she did at least once and got mocked for it.

Here's the website for the store Mrs. Dewson's Hats, with some nice pictures of Dewson. I'm kicking myself now, not only for failing to buy the ocher-and-purple hat, but also for not asking Dewson if I could take some pictures of her in her store. If only I'd been wearing a hat, I might have felt empowered enough to ask.

And here's her book about her hats:

ADDED: Here's her "black enough" letter printed in the Chronicle:
I agree wholeheartedly with the views displayed in this Open Forum ("Black American from Africa offers his view on Obama's 'blackness,' '' March 1). At this time in America, who or what determines our blackness?

Media portray blacks as low income and uneducated. Therefore, does success and education remove any trace of blackness? The truth of the matter is, most black Americans are of mixed ancestry. Maybe genealogy should be a required course in every school.

I would say, "Go, Obama, you're black enough for me."

She's responding to this, from Willis Shalita:
The recent rumblings from some quarters of the black community that Sen. Barack Obama, D-Ill., is not black enough or that "he has not lived our experience" because his ancestors have no ties to slavery, are utter nonsense....

The black author an essayist, Debra J. Dickerson, said, "His father was African. His mother is a white woman. He grew up with white parents." And then she goes on to say; "But there's a lot of distance between black Africans and African Americans."...

If the credential for being black enough is growing up in the "hood" and experiencing the ugly side of our race-conscious society, Lord have mercy. Obama has lived the American experience, has worked hard for his community, has never denied his people and he is uniquely qualified to run for president.

Interesting enough, many great black Americans, such as Shirley Chisholm, the first black woman elected to Congress, civil rights activists W.E.B. Du Bois and Stokely Carmichael, former Secretary of State Colin Powell and Nation of Islam leader Louis Farrakhan, -- to mention but a few -- are, like Obama, descendants of African immigrants.

White America never questions those white immigrants who have paid their dues and made it to the top, such as former Secretary of State Henry Kissinger, retired U.S. Gen. John Shalikashvili, former National Security Adviser Zbigniew Brzezinski, Gov. Arnold Schwarzenegger and others of European descent. Leave it to black America to lay the land mines that will sabotage meritocracy.

The blogger meetup.

Were you at the blogger meetup last night? The setting was very pretty:


And the company was much, much better.

November 3, 2007


I'm in a contest.

UPDATE: I see John Cole has attempted to pick up Kevin Drum's meme, and he begins his list of worst posts ever with:
1.) My first selection is Ann Althouse video wineblogging, but I am not sure whether to put that in my top five best post list due to the sheer joy it brought me, or the worst because of how truly awful it was.
Later he crossed this out and wrote:
Disqualified because it looks like she sobered up and edited out most of the drinking. Damnit.
Uh, John, maybe you sobered up. These videos were never edited after they were posted. I have various vlogs where I hold a glass of wine and take perhaps a sip or two (while talking about something other than wine). But thanks for making your own mental distortions so crushingly clear.

And I hate the spelling "damnit," you damned nit.

UPDATE 2: John Cole writes that he's sorry for writing that my video was edited. Bizarrely, he goes on to grovel in an apology to Juan Cole for something entirely unrelated. He has a 353 word post and exactly 20 words of it are the apology to me, and he only says he's sorry for saying there was editing, not for smearing me with statements about drunkenness. Moreover, he titles this post with my name and uses the word "wineblogging" to further insinuate that I was drunk, which was always a lie.

Writing about his smearing of Juan Cole, John Cole says:
I have no excuse, and the only explanation I can come up with is that I was still completely un-moored regarding my politics at the time... and I lashed out at what I felt was a safe target. It is embarrassing, because I like to think of myself as a good person despite my launching pointed barbs from time to time, but this truly was a shameless and vicious post. That post had the potential to do real damage to someone’s integrity and reputation, it was completely unwarranted and baseless, and I am truly ashamed for writing it.
John Cole is unconcerned with my reputation. For him now, I am a "safe target." Maybe if he switches political sides again, I'll get the abject, groveling apology some day. For now, it's to his political advantage to suck up to Juan Cole, so here he goes. And watch his clueless commenters laud him for his impressive humility. Enjoy thinking of yourself as a "good person." You pathetic hack.

UPDATE 3: In the comments here, Reader Iam writes: " Cole's never gotten over Thanksgiving 2005, and other events November and environs that year (no typos there). That's clear." I'd totally forgotten his role in that little blogstorm, which is explained in this old post of mine. Here's the part about John Cole:
And what about this character, another PJM insider? He writes about my post, saying I'd "lost my mind" and titling the post "Ann Althouse's Integrity"? All for a little old "Yikes"! Oh, I see, he was over here commenting and I deleted his comment. Yeah, because it was too abusive. Now, on his own blog, he's calling me "a liar ... spreading malicious untruths." Where's the lie? He thinks it's a lie to have written about the accident in this post when I wasn't watching the parade on television!

Let the historians of blogging judge who's lost their mind....
Truly pathetic. Nursing his hurt feelings for 2 years. Is that what the good people are doing these days? Loser!

UPDATE 4: To the other loser who posted to note there are edits in the video, I never said the video wasn't edited. It was edited before it was posted and never edited thereafter, contrary to what the pathetic hack John Cole lied.


... baby.

Hello from the West Coast.

I'm unwinding after my 6 hour flight, during which I: 1. tried not to think about what a fool I was to schedule trips for 3 weekends in a row, 2. managed to sleep a couple hours (while listening to "Musicophilia" on the iPod), and 3. enjoyed playing Trivia Challenge with passengers that I knew only by their first names and seat numbers. (I'd have scored a lot higher if a category called "Sport" didn't keep coming up asking me about cricket, rugby, and "football." And if the turbulence didn't screw up my aim at the touchscreen.)

Now, I'm checked into a hotel. I've got my view...


And my room service...


... my WiFi...

I'm just going to baby myself until Monday.

"Hiya Tony. Two or three?" "Two, two, gimme two, that’s good."

Pizza in the movies. (Via Metafilter.)

Marriage in heaven? Opinions vary.

Assuming heaven, how can there be marriage in heaven? If you had the power to design heaven, would you have everyone eternally married to whomever they happened to be married on earth?
Q: Billy Graham recently said that he expects to be with his wife in heaven, but I have seen where other so-called Bible experts say that we will not really know each other in heaven. I have always felt that my husband and I will be together forever, and it upsets me greatly when I hear something like this....
The questioner seeks a Christian answer, and the theologian who answers the question gives a complicated and hedging answer, but it includes this quote from Jesus: "At the resurrection people will neither marry nor be given in marriage; they will be like the angels in heaven.” (Matthew 22:30.) I can see not wanting to upset the nice woman, but shouldn't she have to give up either her dream of eternal marriage or Jesus?

Or does it depend on what the meaning of "will" will be? Jesus spoke in the future tense, so maybe all that means is that you can't get married in heaven, but if you are already married, it will continue. That really doesn't seem fair to those who die without finding the perfect mate. If you knew eternal marriage was the rule, what would be the better strategy in life: trying very hard to find someone suitable for a really longterm relationship or resisting marrying anyone out of fear that things would eventually go awry?

I'm not attempting to do theology here. I'm just wondering why people are so eager to believe something that would not be good.

And excuse me for using the word "whomever" up there. I know it's a made up word to trick students.

"Wee embers were fanned into an inferno by skilled flame-fanners and the professionally offended."

Dick Cavett on Don Imus:
The Imus show had long been an eccentric mix of news, music, sports talk and — thanks to its well-read host — first-rate conversation....

There is really no getting away from the injustice that’s been done. A program enjoyed (and missed) by millions was trashed for the sake of the few. No one who contributed to the denouement of the Imus show and the mindless abuse heaped on him has anything to be proud of.

IN THE COMMENTS: It's all about... Hillary!

"AutoAdmit is like the Iowa primary, where a really backwards group of people get way too much attention..."

The Harvard Record interviews the law school grad who hacked AutoAdmit. For the details of how he did it, go to the link. Here's what he found:
While the information is far from perfect, there were a significantly large number of lurkers when compared to very few posters, a trend that was very common. There were no more than 5 regular posters from [Harvard, as compared to over 150+ readers.

The vast majority of posters who claim to be at Harvard were not. Amazingly, there were entire threads where various HLS posters turned out to really be just one guy talking to himself (who was not even in law school yet!)....

Of my own classmates, and from what I understand from my peers at other schools who worked with me, the average AutoAdmit poster was largely restrained, apolitical, and was not particularly interesting....

Most of the time I looked at people and wasn't really that surprised that they wrote such offensive posts. I guess the real shocker was the number of women who post, which is surprisingly high....

Other than occasional one-time posters, AutoAdmit really is the playground of a handful of really obsessive people that is followed by an incredible number of watchers.
I guess those backward people are terrified that their names will become known. At least that will add some excitement to their restrained, apolitical, uninteresting lives.

November 2, 2007

There is this...


... in the world...


... so ....


The San Francisco meetup.

I'm going to meet up with some readers tomorrow night in San Francisco. Email me for the time and place.

AND: I'd love to hear suggestions for great photo-walks in SF.

"The father-son connection is nothing compared to husband-wife."

Charles Krauthammer on dynastic presidential politics. Bush, father and son, is one thing, but Clinton, husband and wife is quite another:
The relationship between a father and an adult son is psychological and abstract; the connection between husband and wife, concrete and quotidian.
Are Bill and Hillary concrete and quotidian? Put more plainly: They live together.
George Bush, pere, didn't move back into the White House in January 2001....

From day one of Hillary's inauguration, Bill will have had more experience than her at everything she touches....

The cloud hovering over a Hillary presidency is not Bill padding around the White House in robe and slippers flipping thongs. It's President Clinton, in suit and tie, simply present in the White House when any decision is made. The degree of his involvement in that decision will inevitably become an issue. Do Americans really want a historically unique two-headed presidency constantly buffeted by the dynamics of a highly dysfunctional marriage?
Well, do we? Krauthammer unintentionally makes it sound kind of fascinating.

You've gone to the best schools, gotten the best grades, now why can't you get a good job being a good person for a good salary?

It's hard doing good for a living.

Law school Halloween.

Don't you love when the students wear costumes? I didn't see any costumes here at Brooklyn, but back at the University of Wisconsin Law School....

Anyone over the age of 12 that dresses up for Halloween needs to get a life.

Jeremy responds:

Also anyone that eats cake on their birthday or decorates a tree for Christmas. Or goes to the beach during summer. Or drinks milk with their cookies. Or reads from the Funnies section of the newspaper. Or plays Monopoly. Or gets upset 30 years later because one time their mom made them a clown costume for Halloween when they had already asked explicitly for a Roy Rogers Cowboy Costume or at the very least a Johnny Unitas football getup and all the kids laughed at him and he got red in the face under his white makeup and turned and ran and ran and kept running and then vowed to never let anyone enjoy halloween or laugh at them again!

November 1, 2007



That's the Atlantic coast, from last weekend's visit to Stuart, Florida. Saturday, I'm going out to the Pacific coast. I need to pick a place to stay... maybe somewhere where I can get a comparable gaze at an ocean. I've got to be in Palo Alto Monday afternoon. But where to stay?

"Andrew says a lot of silly things about me these days..."

"... and life is too short to pay attention to them."

Well, I identified with that.

"I am prepared to pay the price of supporting Hillary just to get Bill Clinton once again padding over the shag pile carpet of the Oval Office..."

"... even if it is only to bring his wife a cup of tea."

When the Supreme Court announces a "new rule" of constitutional law, does that mean the right it articulates did not exist in the past?

Yesterday, we were talking about Danforth v. Minnesota, and now the transcript of the oral argument is available (PDF). Let's dig in.

This is a case about whether the state courts must follow the doctrine that has in the past applied to federal courts that are considering whether to grant habeas corpus relief to persons who are in custody after conviction in state court. The problem is that the conviction followed a state court proceeding that complied with the federal constitutional law that the Supreme Court had articulated at the time. The Supreme Court said, in Teague v. Lane, that the federal court, on habeas, should not require the state court to redo its work according to a higher standard that was only announced later. The question in Danforth is whether the state courts can follow their own procedure and require new trials that satisfy the higher standard. Danforth was convicted of sexually abusing a child whose testimony was presented on videotape, but the Supreme Court, after his conviction became final, determined that the 6th Amendment requires live testimony. Federal courts, following Teague, won't order the new trial on habeas, but why shouldn't the state courts have the autonomy to establish their own law about whether there will be a retrial in this situation?

There are two significant matters here that ought to appeal to a conservative Justice.

First, originalism. If you are an originalist, there should be no coherent idea that rights are "new." Rights are what they are. The Court may have newly discovered those rights and failed to notice them in the past. But a case announcing a "new rule of constitutional law" should not mean that the right came into being at that point. If you think that, you believe the Constitution grows and evolves. That is the very idea that Justice Scalia mocks whenever he gives a speech, but here's the attitude he took at oral argument:
Now, you can argue, and there are many originalists who would agree with you, that there shouldn't be such a thing as a new rule, but once you've -- once you've agreed that there can be new rules, if this Court says this is a new rule, we acknowledge it wasn't the rule before, but it's new, it will not have retroactive effect, it seems to me that the State would be contradicting that ruling by saying oh, in our view the law used to be exactly what you say it newly is.
Once you've -- once you've agreed ... Why is he agreeing?! Every fiber of his being should be screaming no. A "new rule" isn't a new right. It's a newly discovered right. Is he playing dumb? Why? This should fuel the critics who say he's just hostile to the rights of the criminally accused.

Justice Stevens calls him on it:
JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be -- we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia's position is we have all that power in the world.


JUSTICE SCALIA: My position is we have asserted all that power in the world.

Isn't it nice that everyone had a laugh? I can see laughing if you enjoy seeing Scalia openly displaying hypocrisy and don't care that a man is in prison who might have gone free if he'd had the chance to cross-examine the witness against him. I don't think it's funny at all.

Second, federalism. A conservative justice should care about the autonomous operation of the state court system, subject to the demands of federal law. Teague expressed the deference federal judges owe to the state courts who performed their obligation to enforce federal law well enough and therefore deserve not to have to redo their work according to constitutional law standards they didn't know existed.

Perhaps Teague should be extended to prevent the state courts from offering a broader remedy for the violation of a newly discovered right, but why would that be? Why can't the state courts devise their own remedial approach? A conservative justice should see the need to articulate a reason for turning what was deference to state courts into a limitation on state courts. Yet Chief Justice Roberts seemed eager to conflate remedies and rights. He asserted that the nonretroactivity of a right is part of the definition of the right, and then said that retroactivity "at least" a matter of federal common law, "and doesn't Federal common law preempt State common law?"

Now, that is a question, not an assertion, so perhaps he realizes — I certainly hope he realizes — that there would still be a question of the scope of that federal common law.

Teague applied to federal courts on habeas deciding whether to upset a conviction that had become final. If you want to extend the principle to state courts and deny them the power to fashion their own approach to providing remedies for newly discovered federal constitutional rights, you need to do some common law reasoning and explain why — including why it's good federalism.

UPDATE: Orin Kerr comments on this post:
In response to Ann's second post, I think I disagree with her about the originalist point. There is no inconsistency between being an originalist as a normative matter but a legal realist when asked to explain how the Court actually works. It seems to me that an originalist could look at Crawford and say that the right should have been recognized but wasn't, and that for various reasons habeas relief should be premised on compliance with the law as it was recognized at the time rather than the law as it should have been understood to be.
I don't think you need to disagree with me. You can say that the right was always there. It existed at the time of the trial, unbeknowst to the state court, and a federal court should not not enforce it by upsetting a decision that became final before the right was discovered and proclaimed. You don't have to abandon originalism to accept Teague.
That seems to be Scalia's position. I also think the criticism falls a bit flat with Justice Scalia in particular, as he is a partial, once-in-a-while originalist rather than a consistent defender of the method.
I don't think he wants to sign on to the notion of a living constitution.
On the other hand, I agree with Ann about the federalism point.

Sunset with helicopter.


Google Law School Rankings.

I don't understand it, but it looks nice to me:
  1. Harvard
  2. Stanford
  3. Yale
  4. Michigan
  5. Columbia
  6. Chicago
  7. Cornell
  8. Brooklyn
  9. Vanderbilt
  10. NYU
  11. North Dakota
  12. Wisconsin
  13. Pennsylvania
  14. Suffolk
  15. New York Law School
  16. UC-Berkeley
  17. Minnesota
  18. Notre Dame
  19. Tulane
  20. George Washington
  21. Vermont
  22. Indiana-Bloomington
  23. Texas
  24. Widener
  25. University of Washington

But where's NYU? That's what you get for calling yourself "School of Law" instead of "Law School."

ADDED: Oops. NYU's at 10, but it's at #1 if you use "School of Law" as the search term.

Tiny pineapple, tiny queen.

Tiny pineapple

Tiny queen

(The queen is by Evan Izer. Other objects by Izer blogged here.)

"Make the American people realize they are surrounded in the world by violent extremists."

Rumsfeld's "snowflake" memos.

Is the WaPo "running a story based off of selective quotations and gross mischaracterizations from a handful of memos -- carefully picked from the some 20,000 written while Rumsfeld served as Secretary"? Or does this story "shed light on [the] brusque management style" of "a defense secretary disdainful of media criticism and driven to reshape public opinion of the Iraq war"?

IN THE COMMENTS: Joel writes:

Let me see if I have this straight, we can get the memos of a defense secretary in a time of war before the administration he worked for is even out of office, but we cannot get the memos of the first lady 7 years after her administration is over?

$11 million damages for offensive speech.

It's against the vile Fred Phelps, so do you care? Are you happy?
It was the first-ever verdict against Westboro Baptist Church, a fundamentalist Christian group based in Topeka that has protested military funerals across the country with placards bearing shock-value messages such as "Thank God for dead soldiers."

They contend that the deaths are punishment for America's tolerance of homosexuality and of gays in the military.
These protests are insane — not only hateful but also incoherent. (The dead soldier wasn't gay.) The tort claim was expectation of privacy at the funeral and for intentionally inflicting emotional distress.
Fred W. Phelps Sr., Westboro's founder, vowed to appeal to the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.

"It's going to be reversed in five minutes," he said. This case, he added, "will elevate me to something important," as it draws more publicity to his cause....

"This was in a public space," [lawprof Mark] Graber said "While the actions are reprehensible, the First Amendment protects a lot that's reprehensible."
Graber's right.

"Six guys against Hillary. I’d call that a fair fight. This is one strong woman."

Did "guys" "gang up" on Hillary at the debate the other night?
"The Politics of Pile-On," Mrs. Clintons' Web site announced this morning. "What happens when the 'politics of pile-on' replaces the 'politics of hope.'" The campaign later released a video that featured Mrs. Clinton's Democratic rivals saying her name repeatedly. A headline on the Drudge Report, which said it was reflecting thinking in Mrs. Clinton’s campaign, read, "Scorn: As the Men Gang Up."
So, instead of talking about the substance of what the candidates said, we're supposed to talk about whether Hillary Clinton's opponents are too mean to her — they'd better stop! — and view it all through the gender lens.

ADDED: Obama: "The politics of hope does not mean hoping that your opponents aren't going to point out the differences between you and them."

A 1-minute Halloween video I call "The Music Box."