Thursday, March 31, 2005

"Right for the wrong reasons ... wrong for the right reasons."

The new "South Park" had an excellent presentation of [SPOILER ALERT!] issues from the Terri Schiavo case. The episode, "Best Friends Forever," is playing again tonight (at 9 and 11 Central Time). Highly recommended! You can see a preview of the episode here.

Doughnuts and movies.

Why are we all gathered here this morning -- in the lovely Lubar Faculty Library at the University of Wisconsin Law School?

Coffee & Doughnuts

Well, for one thing, there are doughnuts.

Coffee & Doughnuts

Lots and lots of doughnuts. (I'm only photographing the leftovers!)

Coffee & Doughnuts

And Ralph Cagle is showing us clips from movies about law and lawyers.

Coffee & Doughnuts

See? It's Joe Pesci in "My Cousin Vinnie":

Coffee & Doughnuts

We do a "Coffee & Doughnuts" session on one subject or another most Thursdays during the semester. The idea is to show we're capable of thinking and talking about something other than law. Back at the beginning of the semester, I took part in one about blogging. So, at least for those students who are able to make it in early enough in the morning, we try to amuse you and ply you with sugar-glazed goodness.

God is up to His "mysterious ways" again.

In Austin, Texas, a vanity license plate reading "PS 105" makes RLC think he's found someone who went to his old school -- PS 105 (Public School 105) in the Bronx. He follows the car and finds an opportunity to ask about the plate, and it turns out to be a reference to Psalm 105. Does that mean anything? I mean, anything profound? Is reaching out to people via ambiguous vanity plates one of "His deeds among the peoples" that we are called upon to "make known"? Well, I'm doing my part making it known. How about you?

Difficult childbirth story of the day.

Here.

"When was the last time some Democrat from another part of the country went into Greenville, Alabama, and just said, 'What's the deal here?'"

Russ Feingold goes to Alabama, as reported in the Milwaukee Journal Sentinel. Is he running for President? A more interesting question, perhaps, is how he would run for President?
[O]ver the course of his visit, he laid out what sounded like the elements of an embryonic Feingold strategy - for himself or his party - for how to win back lapsed and teetering Democrats.

Put another way, he provided some clues about how a "Russ Feingold for President" campaign, were it ever to happen, might look.

If the theme of the trip was making inroads in red states dominated by culturally conservative voters, Feingold's prescriptions involved both style and substance.

Along with jobs and health care, he repeatedly brought up the deficit and trade, suggesting both issues could be used to win back conservative and blue collar voters upset by the nation's growing debt or the loss of jobs overseas. He argued that the environment could be a winning issue in red states, especially if Democrats linked it to hunting and fishing and conservation, something John Kerry sought with mixed success to do in 2004.

"John Kerry was a laughingstock in his hunting attire," complained one Democratic activist at a meeting with Feingold in Birmingham.

"I don't think the answer was having hunting attire," said Feingold, who doesn't hunt.

Feingold, unlike some other Democrats, is not writing off the South, and he's done some serious thinking about how Democratic candidates need to change to reach Southern voters:
Feingold, a hunting-state senator who voted against renewal of the assault weapons ban, singled out guns as a hot-button cultural issue that Democrats could neutralize by convincing pro-gun voters that Democrats respect their right to bear arms.

"If we can change the perception about guns, I believe that would be the most useful thing we can do, not only in the state of Alabama, but also in Wisconsin," he said in an interview Tuesday.

Feingold suggested that abortion and gay rights represented more fundamental differences, less easily bridged. But he argued that some voters can live with such differences "if we present ourselves as pragmatic, honest and willing to listen."

In fact, much of what Feingold had to say in Alabama about expanding the party's appeal was stylistic, about speaking "straight" and "connecting" with ordinary people, the sort of things Kerry was criticized for failing to do.

"Maybe it's more about character and about how we present ourselves as people," Feingold said at the listening session he held for some 20 Alabamians in a heavily Republican suburban county south of Birmingham.

Throughout the trip, he criticized the tone of Bush's harshest critics, saying that "some of the language I heard Democrats use was very bad. . . . Don't say, 'I hate the president.' Don't say things like, 'We need regime change in the United States.'"

Well put! I don't know how this plays in the South, but, according to the article, wherever he went, Feingold handed out cheese, bratwurst and kringle. Don't know what kringle is? Won't you be excited when Russ comes to your town and you can find out?

UPDATE: Gordon is kringle-blogging, and he's kringle-blogged before! Can't wait for Russ to come to your town and bring you kringle? Go here!

Wednesday, March 30, 2005

Is this sex discrimination?

A NY appellate court rejected a claim of sex discrimination against a landlord who refused to renew the lease of an AIDS education group because the group's transgendered clients, born male, were using the women's room in the common areas of the building.
The panel ... said bathroom exclusion based on biological "gender" rather than "self-image" is not discrimination...

Emanuel Gold, lawyer for the landlord, the estate of Joseph Bruno, said he argued before the Appellate Division in May 2004 that, "If you're biologically a man, if you're born a man, then you use the men's room. There's no bias against anyone."

Gold said women and girls who worked in or visited other offices in the building were startled and frightened when they found men in the women's rest rooms.

"I don't think there's anybody in America who doesn't understand this," he said.

But [the plaintiff's lawyer Edward] Hernstadt said, "This is not a bathroom case."

"This is a case about whether transgendered people are covered under New York state and New York City civil rights laws," he said. "This decision does a disservice to the transgendered community."

I've seen arguments demanding that special bathrooms be set up to accommodate transgendered persons, but this is different. This is denying people the right to chose which sex to identify with when they choose whether to use the men's or the women's room. The issue of frightening women and girls is interesting. Frightening only occurs if the person is perceived as a man. Should it matter how masculine or feminine the transgendered person in question actually looks?

UPDATE: I’ve read the case, Hispanic Aids Forum v. Estate of Joseph Bruno. At the time the landlord refused to renew the lease, the New York State Human Rights Law mades it unlawful “to refuse to sell, rent, lease or otherwise deny to or withhold from any person . . . land or commercial space because of the race, creed, color, national origin, sex, age, disability, marital status, or familial status of such person or persons …” And the New York City Human Rights Law mades it unlawful ”to refuse to sell, rent, lease . . . or otherwise deny or to withhold from any person or group of persons land or commercial space . . . because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status or alienage or citizenship status …” Later, in 2002, that City law was amended to specify that "gender" includes "a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.” The State Legislature rejected a similar amendment for the state statute. There was some question whether the law in force at the time protected transgendered persons, but the court said it didn’t matter here, because even assuming it did, the plaintiff failed to state a claim:
[T]he complaint, as it stands, alleges not that the transgender individuals were selectively excluded from the bathrooms, which might trigger one or both of the Human Rights Laws, but that they were excluded on the same basis as all biological males and/or females are excluded from certain bathrooms -- their biological sexual assignment.”

Strange weather, Part 2.


Strange weather.
Originally uploaded by Ann Althouse.
Look at the photograph in the previous post, and look at this. Both pictures were taken from the same spot in my front yard at the same time of day -- 4:45 p.m. The greenly sunny photograph in the previous post is the view looking east. This photograph looks west. Is it not bizarre that the dark photograph is the one that looks straight into the sun?

UPDATE: An emailer suggests that the difference between the two pictures is a fluke of backlighting and the camera's automatic light meter. I assure you that these photos represent how it looked to the naked eye. There was bright blue sky in the east, with brilliant light making the mossy trees glow green. A terrible storm was coming in from the west, blocking that sun. The sun looked pale and moonlike, behind clouds, as in the picture. And the sky was worrisomely dark.

Strange weather.


Strange weather.
Originally uploaded by Ann Althouse.
This afternoon the tornado sirens went off, and I sat in my big room next to the basement door, ready to dart below ground level if the branches outside started to shake. Nothing happened but a big crack of lightning. I went out to an appointment, through splatting rain and clumps of fog, and when I drove onto my home street, the sky was bright blue and the trees were all glowing green. Like this one.

Student protest, circa 2005.


Student protest, circa 2005
Originally uploaded by Ann Althouse.
Here's another chalk-on-the-sidewalk student protest that asks students to do something they are inclined to do anyway: walk out of class. Is it somehow less lame because you walk out of class to get the U.S. out of Iraq?

By the way, blogging from Blogger has been really pesky lately, but you can bypass all the problems by working through Flickr, which is what I'm doing now. Click "blog this" above a photo and you can get to a "compose your blog entry" window, click post, and get the post up immediately, without the Blogger hangups!

UPDATE: I'm loving working with Flickr. I just signed onto a two year upgrade -- only $80 or so. Unlike my older photos, these are 3.1 megapixels. If you click on the thumbnails, you'll see the medium sized version, but you can also choose large or full size. There's lots of additional detail in the pictures that you can see if you click on the displayed thumbnail. Also, you'll get into my whole "photostream." And you can comment over there too. So, even though I don't allow comments on my blog, you can get some comments in over at the photographs. I've taken a liberal version of the Creative Commons license, so I think this means you can blog my photos, with credit to me, if you want. In just two days, I've become a raving Flickr fanatic!

The life of a law professor.

Here's the view from my table this morning at Espresso Royale. I was reading National League of Cities v. Usery for the hundredth time and drinking a medium cappucino for the ten-thousandth time.


Espresso Royale
Originally uploaded by Ann Althouse.

The first tornado warning of the year.

Do I run down into the basement when the tornado siren goes off, as it's doing right now? No. But I do stay close to the basement door. Right now, the sky is darkening, but there isn't the slightest bit of wind. See how dangerously I live?

Don't fall for this blog scam! I did!

So you have a blog, and you have a Site Meter. And you check the "Referrals" page, and you see the name of a blog you don't know, so you click on it. But it's one of those automatically updated, machine-made bogus blogs that advertise some damned thing. I'm thinking they've automated coming to your blog to entice you to go there. Of course, that is a version of something bloggers themselves do to get attention, isn't it?

UPDATE: Maybe all that happened was someone clicking on the "next blog" button. Maybe Blogger never should have added that. I thought it was cool at first, but didn't it inspire the bogus blogs? And so many real blogs are just one post that says something like "Hey, I started a blog."

Don't speak ill of the dead?

Actually, the law prefers it.

Ideas first, charisma last.

On the NYT op-ed page, Former Senator Bill Bradley tries to figure out what the Democratic Party can do to rebuild itself. He bases his idea on a plan Lewis Powell (who went on to become a Supreme Court Justice) devised for the Republican Party, after the Goldwater defeat in 1964. Powell's design led to the construction of a "pyramid."At the base are large donors, who fund the conservative research centers at the next level. Above them are the political strategists who take and deploy the ideas produced in the centers. Next are the partisan news media through which the strategists work. Finally, at the top, is the President.
Because the pyramid is stable, all you have to do is put a different top on it and it works fine.

It is not quite the "right wing conspiracy" that Hillary Clinton described, but it is an impressive organization built consciously, carefully and single-mindedly. The Ann Coulters and Grover Norquists don't want to be candidates for anything or cabinet officers for anyone. They know their roles and execute them because they're paid well and believe, I think, in what they're saying. True, there's lots of money involved, but the money makes a difference because it goes toward reinforcing a structure that is already stable.
The Democrats, on the other hand, have a completely unstable, inverted pyramid. The point is at the bottom, and the whole party structure needs to balance on the strength of the one charismatic character who is able to win the Presidency. When he's gone, they're back to nothing.
There is no clearly identifiable funding base for Democratic policy organizations, and in the frantic campaign rush there is no time for patient, long-term development of new ideas or of new ways to sell old ideas. Campaigns don't start thinking about a Democratic brand until halfway through the election year, by which time winning the daily news cycle takes precedence over building a consistent message. The closest that Democrats get to a brand is a catchy slogan....

Candidates don't risk talking about big ideas because the ideas have never been sufficiently tested. Instead they usually wind up arguing about minor issues and express few deep convictions. ...

If Democrats are serious about preparing for the next election or the next election after that, some influential Democrats will have to resist entrusting their dreams to individual candidates and instead make a commitment to build a stable pyramid from the base up. It will take at least a decade's commitment, and it won't come cheap. But there really is no other choice.
Very well put -- by a man with a fancy educational background who once ran for President and wiped out early, because of a woeful lack of charisma. He's right, though, isn't he?

Is it a mystery that academics tend to vote for the Democratic candidate, despite this lack of coherent ideas? Academics are -- I'm thinking -- a lot less interested in elaborately structured ideologies than nonacademics imagine. Perhaps intellectuals are more comfortable with freewheeling, pragmatic politics than the average citizen. But Bradley is still right: the Democrats should develop a coherent ideology in order to speak persuasively to that average citizen, who longs for ideas that make sense. And plenty of academics would freewheelingly and pragmatically enjoy raking in lots of money while they produce the necessary structure of ideas.

UPDATE: Gerry Daly has a different perspective on the Bradley piece.

ANOTHER UPDATE: Here's another perspective, from Tigerhawk (who reveals that he went to law school with Ann Coulter).

The fight over domestic partner benefits.

The Wisconsin State Journal reports:
Two key lawmakers said Tuesday they would recommend removing a provision of Gov. Jim Doyle's proposed budget extending insurance benefits to the domestic partners of unmarried University of Wisconsin System employees.

Rep. Dean Kaufert, R- Neenah, co-chairman of the Legislature's budget-writing committee, and committee member Rep. David Ward, R- Fort Atkinson, said the $1 million proposal was ill-timed.

"It is impossible to think of extending employee benefits to a whole new demographic of people at the same time we are watching the UW System struggle to cover their current set of bills," Kaufert said, calling the decision "a fiscal issue, plain and simple."

But university officials who testified before the Joint Finance Committee at a daylong hearing on the budget said the provision is a key part of an overall effort to attract and retain star faculty, which also includes $5 million for campuses to counter offers from competing institutions.

"On a fairness basis, I think there's a pretty strong case that can be made for extending domestic partner benefits," Regent Charles Pruitt said. "But on a competitive basis, it's an even stronger case. We are the only university system in the Big Ten that doesn't offer domestic partner benefits."

Gov. Jim Doyle has budgeted $500,000 in each of the next two years for the benefit, which would let same-sex and unmarried heterosexual couples qualify for the same family insurance coverage spouses of university employees get.

The provision is seen as a long shot in a Republican- controlled Legislature seeking to ban same-sex marriage and civil unions....
I would argue that those who are against same-sex marriage ought to support equalizing benefits. Gay state employees shouldn't be stuck with a systematically inferior pay package and shouldn't be singled out for special burdens when we need to save money. Those who want to make an argument about the essential nature of marriage shouldn't want to connect that argument -- which they try to phrase in lofty, idealistic terms -- with shortchanging a set of employees. A lot of us are already skeptical of your lofty -- we might say sanctimonious -- presentation of the argument against same-sex marriage. If you link this argument with rank cost-cutting, you can expect us to become even more skeptical.

Must bicyclists obey traffic laws?

The Badger Herald reports that the UW Police are going to make some new efforts to enforce traffic laws against bicycle and moped riders.

Ever notice how we call them riders, not drivers? It's part of the whole aura of irresponsibility.

I speak as a pedestrian in Madison. For fifteen years, I walked to work. (I live a little over a mile from the Law School.) I switched to driving largely because I got tired of the bicyclists riding, full speed, on the sidewalk. It was especially irksome to share the sidewalk with them on University Avenue -- most of my walk -- because University Avenue has bicycle lanes going in both directions.

Now, I park in the Business School garage, and I cross University Avenue to get to the Law School. For cars, University Avenue is one-way, but the bicyclists can still come through from both directions, which they do, light or no light, without slowing down for the groups of pedestrians who've waited for the crossing light and are especially unlikely to notice anything coming from west-to-east direction.

Sometimes I wonder what goes through the mind of the campus bicyclists. Do they think they are more virtuous because they go without gasoline? But their reckless sense of entitlement made me take up driving. You would think that bicyclists would have a positive image, and that people who walk would admire those who bike instead of driving. But the selfish behavior of bicylists on campus has made us pedestrians despise them.

UPDATE: A emailer makes a good point about drive/ride:
I always just thought it was the verb having to do with the seating and form locomotion. Train conductors drive a train, passengers ride on it. You drive a team of oxen, but you ride a horse. You especially ride a motorcycle, and drive a car (or drive a "cage").

I believe it comes from something to do with "mounting" astride the horse or the bike, as opposed to sitting-down on an upholstered bench in a cocoon of comfort.

You especially only ride a dirtbike until you fall off - it's a temporary thing, the riding. That's why we wear a lot of protective gear.

If you say that you drove a motorcycle you'd be laughed out of the big Harley gathering at Sturgis, even though many ostensibly badass-looking accountants and dentists types trailer their bikes to a nearby motel, and then ride-in.

I kind of think I'd be laughed out of a big Harley gathering at Sturgis no matter what I did.

ANOTHER UPDATE: Several Madison bicyclists have emailed to say that they follow the rules and are dismayed that other bicyclists don't and ruin everybody's reputation.

Tuesday, March 29, 2005

"But I also know if I can get music without buying it, I'm going to do so."

So said Justice Souter -- of all people -- in the oral argument in the Grokster case today. Doesn't look too good for the music industry side, does it?
But by the end of the lively argument pitting Grokster and its allies on the electronic frontier against the entertainment community's stalwart defense of intellectual property rights, any prediction about what the court will actually decide appeared perilous.

It's a difficult case, and the question, based on the old Sony case about videotaping, is whether there's a "substantial noninfringing use" for the technology:
Justice Antonin Scalia said he was concerned that legitimate uses of a new technology might need some time to become established; in the meantime, the developer would be defenseless against a copyright infringement suit. "What I worry about is a suit right out of the box," he said. "Do you give a company a couple of years to show 'substantial' noninfringement?"

[Acting Solicitor General] Clement replied that in the government's view, there should be "a lot of leeway at the beginning." But that was "not this case," he said, asserting that Grokster and StreamCast had "a business plan from Day 1 to capitalize on Napster."

See? It's really difficult!

Building electronic circuits out of bacteria.

From Wisconsin Public Radio (audio):
A team of scientists at UW-Madison have found a new use of bacteria to build tiny electronic circuits. Eventually the discovery could lead to the creation of micro sensing devices that could warn of the presence of dangerous biological agents such as anthrax.

"American Idol" -- It Came From the Nineties.

The theme tonight is the nineties. I'm thinking of all the great Alternative Rock songs early in the decade, but no... that's not how it will be! Bo Bice sings some chaotic, unmusical Black Crowes song. He tries to make us like him by wearing a huge, floppy black-and-white cowhide-patterned hat and by dancing on the judges' table, something you know Simon will experience as appalling. Jessica Sierra does a Leann Rimes song, and it's completely dull. My mind wanders. Oh, it's over. Good. And Anwar sings "I Believe I Can Fly," making the beginning astoundingly singsong, then doing some Stevie Wonderish high notes to try to distract us from the mediocrity of it all. Paula lays it on thick -- so disgustingly that I'm writhing on the floor gagging. Anwar raises a fist in victory and it's all so terribly unreal that I'm hoping for Simon to slam Anwar, even though Anwar seems to be such a sweet guy that you don't normally want anything bad ever to happen to him. Simon agrees with Randy about the complete inadequacy of the low notes, reminding the voters not to fall for the glorious high notes but to penalize poor Anwar for the really bad half of the song.

Nadia's hair is back to full-on Nadiosity, and she sings "I'm the Only One." Didn't Nikki McKibbin sing that in Season 1? I'd say she's a lot worse than Nikki, as an exciting singer. But after what happened to Nadia last week, I bet the judges try to help her. Randy damns her with the faint praise she always gets: you're not the best singer in the competition, but... Simon likes her but is critical of the song: it's not melodic. Which has been my problem all night: unmelodic songs! Was that some 90s trend? Also, let me say something about the words:
Please baby can’t you see
My mind’s a burnin’ hell
I got razors a rippin’ and tearin’ and strippin’
My heart apart as well

Is this the way to convince your lover to come back? I'd say it's time to get a restraining order! That's just ugly!

Here's Constantine! I started liking him last week, you know. And in his interview, he's talking about Grunge. Finally, something that really says 90s! But what is this cheesy love song? It doesn't seem grungy at all! What kind of a bait-and-switch is this? "I Can't Make You Love Me." I don't get it. I was expecting Nirvana or at least Pearl Jam. But this is Bonnie Raitt! This isn't Grunge! Paula and Randy love it, but Simon likes him too! "Classic pop star." So much for Grunge!

Nikko... It's this song, which I've never heard before -- or never been conscious of hearing. Total nonsong. Randy raves. Paula raves. Simon thinks it was a good copy of the original. Eh...

Anthony Fedorov is driveling something about the way you look tonight, which focuses me on the horrible green shirt he's wearing tonight. Ooh, he's awful! "I want to be nice," Simon says, "because I like you"... but he isn't nice -- quite appropriately!

Carrie Underwood sings "Independence Day," and they all love her. Simon tells her she has "that It factor -- and that's what it's all about." Does nothing for me.

Scott Savol. Aaarrrggghhhh. Singsong beginning. Weird high-low stuff. What is this song? It's all over the place. It's this. "Ambitious song... all right" ... "I was swaying... vibing it... you got my heart" ... "Get real here. Whoever wins this competition has to enter the real world."

Vonzell goes last? She does an old "American Idol" favorite, "I Have Nothing." I never need to hear this song again. The judges like it!

So what do I think of tonight? I think they were in a completely different 90s from what I remember. There was some great music, but they didn't sing any of it. These bellow-y ballads? I hate them all! Who should go? They all should go! If I ever motivated myself to dial the telephone and try to save anyone -- which I don't -- who would I vote for? Oh, Vonzell, because I like her. And Constantine, because he's sweet and self-effacing. Who would I kick out? Carrie, because the Powers That Be like her too much. Anthony, because he hurt my ears. Anwar, because that singsonging thing was lame.

UPDATE: Adam at Throwing Things seems to share my basic take on the contestants. Plus he says a lot of funny things. I especially liked: "Nikko -- Welcome to Charles Grigsby/Rickey Smith World; Population: Three."

UPDATE, WEDNESDAY NIGHT: So Jessica's gone. That's what I predicted. Well, either her or Anwar. And Anwar came in next to the last. It's striking how well the voters get it. The show itself was boring tonight. There was another dreadful group sing.

I imagined it.

Howard Kurtz reports:
College faculties, long assumed to be a liberal bastion, lean further to the left than even the most conspiratorial conservatives might have imagined, a new study says.

By their own description, 72 percent of those teaching at American universities and colleges are liberal and 15 percent are conservative, says the study being published this week. The imbalance is almost as striking in partisan terms, with 50 percent of the faculty members surveyed identifying themselves as Democrats and 11 percent as Republicans.

Harvard's faculty of arts and sciences hit President Lawrence Summers with a vote of no confidence after he privately wondered about the abilities of women in science and math.

The disparity is even more pronounced at the most elite schools, where, according to the study, 87 percent of faculty are liberal and 13 percent are conservative.

"What's most striking is how few conservatives there are in any field," said Robert Lichter, a professor at George Mason University and a co-author of the study. "There was no field we studied in which there were more conservatives than liberals or more Republicans than Democrats. It's a very homogenous environment, not just in the places you'd expect to be dominated by liberals."

Studies need to try harder to amaze me.

(And, yes, I know, everyone has already linked to this. But I've been trying to put up this post since this morning, and Blogger's been down -- they really were fixing something today -- so I'm going to put this up at long last.)

"Drawn into a vortex of irrationality and nastiness that generates its own energy."

Christopher Hitchens regrets starting to talk about the Schiavo case, but, having started, he goes on to say a lot more. It's harsh, but I think he says some things a lot of people think but won't say.

How are things in Latvia?

Check out this new blog, written by an American. As his first post shows, he emailed me something about my blog, and I encouraged him.

Jurors consulting the Bible.

The NYT reports on a Colorado state court opinion that threw out a death sentence because the jurors consulted a Bible. Now, clearly, jurors are not supposed to bring in their own materials, but here they used the Bible in considering moral values after they were given the instruction, required by Colorado law, that each juror should make an "individual moral assessment."
In the decision on Monday, the dissenting judges said the majority had confused the internal codes of right and wrong that juries are expected to possess in such weighty moral matters with the outside influences that are always to be avoided, like newspaper articles or television programs about the case. The jurors consulted Bibles, the minority said, not to look for facts or alternative legal interpretations, but for wisdom.

"The biblical passages the jurors discussed constituted either a part of the jurors' moral and religious precepts or their general knowledge, and thus were relevant to their court-sanctioned moral assessment," the minority wrote.

Legal experts said that Colorado was unusual in its language requiring jurors in capital felony cases to explicitly consult a moral compass. ...

"The court says we're asking you to be moral men and women, to make a moral judgment of the right thing to do," said Thane Rosenbaum, a professor of law at Fordham University School of Law in New York City, and author of the book "The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right" (HarperCollins, 2004). "But then we say the juror cheated because he brought in a book that forms the basis of his moral universe," Professor Rosenbaum said. "The thing is, he would have done it anyway, in his head."

Other legal experts say the Colorado decision touches on an issue that courts do not like to talk about: that jurors, under traditions dating to the days of English common law, can consider higher authority all they want, and can convict or acquit using whatever internal thoughts and discussions they consider appropriate.

In this instance, lawyers said, there was simply a clearer trail of evidence, with admissions by the jurors during Mr. Harlan's appeal that Bibles had been used in their discussion. One juror testified she studied Romans and Leviticus, including Leviticus 24, which includes the famous articulation of Old Testament justice: "eye for eye, tooth for tooth."...

The Bible is hardly monolithic about what constitutes justice. Some legal experts say the jurors might just as easily have found guidance that led them to vote to spare Mr. Harlan's life. Lawyers for Mr. Harlan also specifically urged the jurors to consider biblical wisdom, according to the Supreme Court's decision, with a request that they find mercy in their hearts "as God ultimately took mercy on Abraham."

The lawyers also made several references to Mr. Harlan's soul and his habit of reading the Bible with his father, the court said....

Most American jurors, I would think, remember "Eye for eye, tooth for tooth" along with other Biblical sayings. They are going to think about these moral concepts that have become part of their minds and, unless carefully instructed to refrain from saying such things, they are likely to quote the verses they know. But is an important line crossed when the actual text is seen in the jury room?

I don't have time this morning to read the case, but I'll take a look at it later and update if I can.

UPDATE: Oh, Blogger's been awful today, but finally I can update. I’ve read the case, People v. Harlan, and the key point really is bringing in the text – “extraneous evidence”:
The jury deliberated on the penalty phase late into Friday evening, but did not reach a unanimous verdict. Several jurors studied Bibles Friday night in their hotel rooms, looking for passages relating to capital punishment and a citizen's duty to obey the law, and took notes on the location of particular passages.

Juror Eaton-Ochoa took notes on two passages. The first was Leviticus 24:2021: "fracture for fracture, eye for eye, tooth for tooth, as he has caused disfigurement of a man, so shall it be done to him. And whoever kills an animal shall restore it, but whoever kills a man shall be put to death." The second was Romans 13:1: "let every soul be subject to the governing authorities for there is no authority except from God and the authorities that exist are appointed by God."

Juror Eaton-Ochoa brought a Bible into the jury room Saturday morning when deliberations resumed. Other jurors testified that more than one juror brought in a Bible, and that one of the Bibles present contained a study index with which a reader could locate passages on particular subjects. Jurors Eaton-Ochoa and Trujillo also brought their notes on biblical passages into the jury room. Juror Eaton-Ochoa showed juror Cordova the Bible text from Leviticus commanding the death penalty for murder, as well as the Romans text. By noon that day, the jury returned a unanimous verdict imposing the death penalty on Harlan.

Thus, it was like earlier cases – one in which jurors looked up the word “burglary” in the dictionary, and another where jurors looked up “Paxil” on the internet. The court was explicit about the distinction between bringing the book into the jury room and holding the same text in one’s head and even quoting it aloud in the jury room:
We do not hold that an individual juror may not rely on and discuss with the other jurors during deliberation his or her religious upbringing, education, and beliefs in making the extremely difficult "reasoned judgment" and "moral decision" he or she is called upon to make in the fourth step of the penalty phase under Colorado law. We hold only that it was improper for a juror to bring the Bible into the jury room to share with other jurors the written Leviticus and Romans texts during deliberations; the texts had not been admitted into evidence or allowed pursuant to the trial court's instructions.

We expect jurors to bring their backgrounds and beliefs to bear on their deliberations but to give ultimate consideration only to the facts admitted and the law as instructed. The judicial system works very hard to emphasize the rarified, solemn and sequestered nature of jury deliberations; jurors must deliberate in that atmosphere without the aid or distraction of extraneous texts that could prejudicially influence the verdict.

The written word persuasively conveys the authentic ring of reliable authority in a way the recollected spoken word does not. Some jurors may view biblical texts like the Leviticus passage at issue here as a factual representation of God's will. The text may also be viewed as a legal instruction, issuing from God, requiring a particular and mandatory punishment for murder. Such a "fact" is not one presented in evidence in this case and such a "legal instruction" is not the law of the state or part of the court's instructions.

The secret to being Amazon's #1 reviewer.

Read four (or five) books a day and only give positive reviews -- that's the message from this WSJ interview with Harriet Klausner.
It would be overstating things to suggest that Ms. Klausner, 53, has never met a book she didn't like. It would be more on the money to say she's of the "if you don't have anything nice to write, don't write anything at all" school of literary criticism. "If a book doesn't hold my interest by page 50 I'll stop reading, which is one of the reasons I give a lot of good ratings," says Ms. Klausner, whose voice suggests she's taken more than a few nips of helium. "And why review a book to give it a low rating or to tear it apart? Nothing in that."...

Ms. Klausner's taste runs to fantasy, chick-lit romance--particularly the paranormal and supernatural variety--horror and science fiction. Pet authors include Laurell K. Hamilton, Jan Burke, Nora Roberts, Jayne Ann Krentz and particularly Patricia Cornwell. "I need a lot of variety. There's never enough for me to read," says Ms. Klausner, who has zero truck with poetry, westerns ("You put on a cowboy hat, place the story in the wild west and you have a police procedural") or nonfiction ("unless it's a subject I'm really into. Otherwise it's too time-consuming.")

Well, tons of people enjoy her advice, but personally, I feel no connection to her way of thinking about things. Not enough to read, yet nonfiction is too time-consuming?

Monday, March 28, 2005

Waiting for grilled cheese.


Marigold Café
Originally uploaded by Ann Althouse.
So here I am at the Marigold Café, with my casebook open to the habeas corpus chapter. My number is 67, which seems lucky, because it's the street address of the first house I ever lived in. I'm waiting for a grilled cheese sandwich. I mean, I was, four hours ago. Right now, I'm testing out Flickr, used with Flickr Export from iPhoto. all my past photoblogging has used Mac.com and has involved some painstaking coding. Let's see how this works.


UPDATE: So let's assess how that worked. Most glaringly, it screwed up the accent over the "e" in café. A small thing, now fixed. Second, it puts the picture over on the side and makes the border too dark to suit the Minima template. But I can fiddle with the coding and fix that too. There, I've lightened the border. But third, it pulls me into the world of Flickr, which I know has some cool aspects to it, but, for example, I don't know if I want to get that email saying "You are so-and-so's newest contact!" Am I going to regret this?

Teaching the Schiavo case.

I wonder if lawprofs are going to teach the Schiavo case in their classes, at least this semester, when the issue is very present in everyone's mind. I don't know if I'd put it in my Constitutional Law class, but it seems to me to fit well with Federal Courts/Federal Jurisdiction, which is my other class. We've studied Congress's power to regulate the jurisdiction of the federal courts and various federalism-based doctrines limiting the intrusion of federal courts into state court matters, and we are about to study habeas corpus, which deals with federal court review of state court judgments in criminal cases.

Examining a hot, current case takes time away from planned topics. Certainly, we did it back in the days of Bush v. Gore. I remember coming in to teach about federal question jurisdiction in Civil Procedure when the Bush-Gore litigation was just starting and the class expressing shock that I wasn't going to talk about it. So I talked about it, but a doggedly made it about federal question jurisdiction too!

Back when I went to college, we Baby Boomer students expected every teacher to put every subject to the side and talk about Vietnam. A vogue word of the time was "relevant," and we were very harsh about informing teachers that they weren't "relevant." I remember the the professors accommodating us -- following their own political hearts? -- by reordering the Western Civilization class so that every topic was "revolution" -- which seems so laughably lame now.

The "impishly fun" President.

Elisabeth Bumiller writes about how much President Bush seems to enjoy press conferences these days.
At a news conference last week, Mr. Bush joked that he did not have the time "to sit around and wander, lonely, in the Oval Office, kind of asking different portraits, 'How do you think my standing will be?' "

And at the end of an interview with a Belgian television correspondent last month, Mr. Bush blurted out to the young woman that she had "great eyes," glanced away slyly and then a little sheepishly, but for the most part seemed sorry that the session was over.

Is this a new George Bush?...

Clay Johnson III, the deputy director for management in the White House budget office and Mr. Bush's roommate at Yale, had a simple explanation for the president's mood: "He never, ever has to run for office again."
That reminds me of how a lawprof feels a liberation and a new sense of fun in the last few days of the semester, after the students have written their evaluations.

Sunday, March 27, 2005

Easter on State Street.

I took a yellow pad and a book I need to write about down to a café on State Street. I also brought the NYT crossword puzzle and some admissions files. I did not bring my computer, because I feared the usual mesmerization. At one point, taking notes on my book, I paused and then felt I needed to do something and then realized it was that feeling of needing to save. I've really gotten out of the habit of taking notes with a pen and paper. I read three admissions files. I do the puzzle. I notice a figure looming over my table. It's Chris -- my younger son. He's here to get some writing done and takes a table in the back. I'm using all the room on my little table. Later, I get up to leave and stop over at his table to say goodbye. I take a picture:



He takes a picture of me:



I leave and take a walk on State Street. It's a sunny warm day. Someone is playing the saxophone. One of those people who hang around in Peace Park saw a man walking a golden retriever and called out to the dog, "Hey, Lassie." Most of the shops were closed, but there was some good window shopping to be done. My camera battery conked out, or I would have taken a picture of the big store window where they'd built a pyramid out of cigarette cartons and posted a big sign that read "Dip Your Lungs In Sunshine."

That was Madison in the early afternoon. Later in the afternoon, some sports-related unhappiness settled on the city.

UPDATE: I started the diagramless puzzle in the café, but it was tricky, and, using a pen, I found myself in need of Wite-Out soon enough. I switched to the far, far easier regular crossword. Later, at home, I finished the diagramless puzzle, and it was a puzzle for the ages! Wow! Just plain: wow! And "wow" was actually one of the answers. But ... wow! I can only think of one diagramless puzzle that was more impressive. And if you do the diagramlesses, you know what I'm talking about: Connect the Dots, the most amazing puzzle ever to appear in the NYT.

Arguing with your ex, in the comments.

I think I'll resist.

UPDATE: Readers, banish all sentimental thoughts! R and I broke up nearly twenty years ago.

"Jeopardy!" in Madison.

"Jeopardy!" is coming to Madison, looking for contestants, on April 20th and 21st. Submit your application here.

Easter and the end of Spring Break.

It's Easter and barely 30 degrees here in Madison, but it's sunny, the birds are singing in a springtime style, and, supposedly, it's going to warm up to 50 degrees. I should get out and around. I'm sure many young Madison kids will be out in shorts, T-shirts, and sandals -- if they are back from Spring Break yet.

I've seen my son John off, and he's on his way back to Ithaca, after his own Spring Break. It was nice to have him home. Both of us were trying to get a lot of work done while enjoying the leisurely pace of a week without law school classes. Of course, as usual, I didn't get half of what I meant to get done done.

If you ever wish you could have more time to get something done, just remember: if you did have more time, you wouldn't get more done. The extra time would melt away, and you'd be back feeling pressure to get it done in too little time. You might as well enjoy the free time and not moan about the things you didn't achieve. Idle moments at the dining table, talking about this and that, are much more your real life than all those grand accomplishments, achieved and unachieved.

"They all got their piece of Terri Schiavo."

Carl Hiaasen has some harsh words about the Schiavo controversy:
That the Congress basically climbed into Terri Schiavo's private deathbed is not only disgraceful, it's scary.

This was a family matter and nobody else's business. Five years ago, in the midst of their guardianship battle with her husband, Schiavo's parents conceded that their daughter was in a persistent vegetative state.

Then they went national, and that's when the circus started -- the wailing Bible-thumpers, the goofballs with their homemade crucifixes, the pious anti-abortion lobby and their rabidly misinformed bloggers.

Close behind were politicians on the scent of votes and money....

The whole thing was one of the most cynical charades in memory. From the Congress to the White House to the statehouse, they all got their piece of Terri Schiavo.

By the time this column appears, she might be gone, but you can be sure that the politicians and the zealots they're courting will never let this poor woman die.

Even when she's dead.

Did you enjoy that slab of red meat? I thought it had an off taste.

Easter candy controversy.

The Russell Stover candy company is taking some heat for producing a chocolate cross as an Easter candy.
"Obviously they've seen that there's a market for chocolate crosses at Easter," said Lisbeth Echeandia, a consultant for Candy Information Service, which monitors candy-industry trends. "I don't see it growing tremendously, but I think there would be growth in the Christian market."

However, not all Christians are happy about it. Chomping on a chocolate cross can be offensive to some, said Joseph McAleer, a spokesman for the Diocese of Bridgeport in Connecticut

"The cross should be venerated, not eaten, nor tossed casually in an Easter basket beside the jelly beans and marshmallow Peeps," he said. "It's insulting."
But the point of the Easter candy cross is to satisfy people who think it's offensive to make Easter about rabbits and chicks. And is it wrong to eat a cross? What about the longstanding tradition of hot cross buns?

UPDATE: A reader writes:
Not just hot cross buns. What about pretzels, which were designed by monks to resemble arms folded in a traditional prayer posture?

Christianity is an incarnational religion. Eating signs of the faith isn't disrespectful. After all, the Eucharist is a preeminent expression of faith. If you can consume God, I can't imagine why you can't nibble on a cross.

Schiavo politics, judicial politics.

I notice we're not talking about Social Security anymore. It was too tedious to talk about -- too tedious to think about. But everyone can think and talk, talk, talk about Terri. This is a problem with a face -- and in that face we can see all the things that we become emotional about.

But when Terri has died, will the political effect linger on?

We are also on a death watch for our Supreme Court justices, who have held their seats for so long. Politicos and ideologues long for the opportunity to replace them, and some would like to see the Schiavo vigil as a warm-up for the next Supreme Court appointment ordeal.

Here's the slant from Jeffrey Bell & Frank Cannon at The Weekly Standard:
For President Bush and the social conservatives who comprise the central rampart of his base, the courts' naked assertion of judicial supremacy in deciding the fate of Terri Schiavo represents an important moment. This is because the premise of the Democratic filibuster of the president's conservative judicial nominees is that the Roe v. Wade decision must never again be called into question.

The judicial confirmation debate will now unavoidably be about whether democratic decision-making on abortion should continue to be prohibited by our courts and (effectively) by the American legal profession. From the beginning, those who believed Roe would corrupt the rule of law feared that state sanction of private killing would put all public order and all private restraint in doubt. The fate of Terri Schiavo makes clear that those fears were utterly on target.
Did you enjoy that slab of red meat? I thought it had an off taste.

UPDATE: If you didn't enjoy this slab of red meat, try this cut from the other side.

Saturday, March 26, 2005

Is "American Idol" hurting Broadway?

The NYT's Ben Brantley bemoans the effect of "American Idol" on Broadway singing:
The tentacles of the "American Idol" sensibility ... reach much deeper, into the very throat of the American musical, and may change forever the way Broadway sings. This is not a happy prognosis.

The style of vocalizing that is rewarded on "American Idol" - by its panel of on-air judges and by the television audience that votes on the winners - is both intensely emotional and oddly impersonal. The accent is on abstract feelings, usually embodied by people of stunning ordinariness, than on particular character. Quivering vibrato, curlicued melisma, notes held past the vanishing point: the favorite technical tricks of "Idol" contestants are often like screams divorced from the pain or ecstasy that inspired them.

The Broadway musical has always had its share of big-voiced belters, from Ethel Merman to Patti LuPone. But they have usually belonged to the tradition of Broadway as a temple to magnified idiosyncrasies, to performers for whom song is an extension of individuality. Which is why when Simon Cowell, the most notoriously harsh of "American Idol's" judges, describes a contestant as "too Broadway," it is meant as a withering dismissal.

Hmmm... I don't think that's what Cowell means by his "too Broadway" slam. I think he thinks Broadway is traditionally exactly what Brantley thinks "American Idol" is turning it into. I think "AI" wants the contestants to have more life and individuality, but the people with the nerve and stamina to get through such a high-pressure competition tend not to have soulful, artistic depth.
That self-congratulatory element is also part of the "American Idol" package - the subtext that goes, "I deserve to be a star because it's my right as an American, and because I try so hard." It seems appropriate that musicals as seemingly different as "Wicked," a politically corrected back story of "The Wizard of Oz," and "Little Women," adapted from the Louisa May Alcott classic, both have first-act finales that are brassy (and virtually interchangeable) declarations of self-worth and self-determination.
Well, actually "American Idol" judges and voters are constantly hitting I'm-a-star kids with on-the-spot rejection, and many of us viewers watch to see the smuggest ones get the boot. (Kimberly Caldwell -- known as KimberME -- was a Television Without Pity punching bag in Season 2.)

And those brassy first-act finales are scarcely a post-"AI" development, as Brantley himself must concede. He notes, among other things, that "Jennifer Holiday was bringing down the house in 'Dreamgirls' by wrapping her voice like a boa constrictor around an angry ballad called 'And I Am Telling You I'm Not Going.'" And that, of course, was the original song choice of "American Idol" fan favorite, Frenchie Davis -- blamed in the article for bringing "AI" to Broadway. Last season's winner, Fantasia, became the frontrunner by singing a beautiful and sensitive rendition of "Summertime," a Broadway musical song.

There is some kind of interplay between "American Idol" and Broadway, but it's more complicated than Brantley lets on. Brantley hates "American Idol" -- I can surely understand why he (or anyone else) hates it -- but he also can see that Broadway is pretty bad. Both are bad, but he wants Broadway -- and not "AI" -- to survive. But that's no reason to blame "AI" for Broadway's problems.

UPDATE: Matt Marcotte addresses Brantley's article from the perspective of not having seen any "AI" to speak of. But he loves Broadway and has seen a lot of the recent shows. I saw about five Broadway shows back when "Ragtime" came out, but -- as with movies and concerts -- I dislike sitting in an audience so much that I rarely bother to buy tickets for anything. Are Broadway shows more "belty" than they used to be? I think maybe it's subjective. It may be that for Brantley, after seeing "American Idol," Broadway singing seems worse because you're now able to think that it seems like "American Idol." More specifically, Brantley's subjective experience includes his response to those inferior people he's forced to sit amongst:
Like the Olympics telecasts, "American Idol" celebrates stamina, will power and gymnastic agility. The most successful contestants take an athletic approach to a melody. They hoist, hold and balance notes like barbells in a weight-lifting exhibition. And the audience claps and hoots instinctively every time such muscle-flexing occurs.

That same Pavlovian reaction is now being elicited on Broadway as well. Eruptions of note-bending have joined the hallowed list of performance tricks guaranteed to inspire applause: precision tap dancing, Rockette-style line kicks, handsprings, successive pirouettes and indignant one-liners that are followed by the slamming of doors.

At the performance I attended of the new musical "Dirty Rotten Scoundrels," , the audience greeted each number with subdued warmth, though the show's stars, John Lithgow and Norbert Leo Butz, were working hard to put over the songs with style and character. Finally, in a self-addressed valentine that is the show's last number, Mr. Butz claimed his "American Idol" moment with one musically stretched-out phrase: "I think we still deserve a ha-a-a-a-nd ..." I suspect that the composer David Yazbek intended the moment to be comic. All the same, the audience roared with approval. It was what they had been waiting for.
I actually sympathize with Brantley here. How can you enjoy a show (or a movie) sitting with an audience that is responding inappropriately, revealing that they don't understand the meaning?

But crowd-pleasing has been part of shows and concerts for a long time. Why do they give Oscars for hammy emoting -- crying and dying -- and not for subtlety? Why do people at rock concerts cheer for show-offy guitar solos? Brantley's article is titled "How Broadway Lost Its Voice to 'American Idol'" -- and I just don't believe in the cause and effect. The human taste for big, loud, and spectacular goes back a long way.

By the way, that article title reminds me of all the books that are around these days that have titles saying one thing changed everything. It's a big trend in titles: the single causative factor.

Did I "join the caucus"?

Hugh Hewitt writes this about me:
Ann Althouse joins the caucus of those agreeing with the view that Congress either did not intend to keep Terri Schiavo alive pending a de novo trial, or failed to effectuate that intent, and thus that criticism of the federal courts is misplaced.

I dread reading the rest of the post, because this first sentence misreads me so badly.

First, the "caucus" metaphor suggests that a group of like-minded politicos got together to promote a particular outcome and came up with this talking point. I was alone, watching TV and writing on my blog, not consulting with or communicating with anyone else. I never so much as sent out an email seeking a link. I called it the way I saw it.

Second, I never wrote about what Congress "intended," I wrote about the obligation of the courts to deal with the statutory text Congress produced. That text told the federal courts "determine de novo any claim" of a federal right. It did not say to give Schiavo "a de novo trial." People who would like to see the federal court redo everything the state court did, down to the appointment of Michael Schiavo as the guardian, keep saying "de novo," without focusing on what is to be done de novo. But, clearly, under the statutory text, it's the consideration of the federal rights.

I'm not pushing a particular outcome here. In fact, I'm sympathetic to the argument of erring on the side of life. But I'm trying to understand what Congress did and explain why so many federal judges have read the statute the way they did.

If Congress had written a different statute, the analysis would be different. If they had authorized to federal courts to do more, there would be more serious questions about the constitutionality of the statute.

Hewitt does not parse through the text of the statute as I did. He links us to the statute, and he quotes an email from an unnamed Remedies teacher. But that email is irrelevant as a criticism of what Judge Whittemore did, because it focuses on irreparable harm, and Whittemore found irreparable harm. Whittemore denied preliminary relief because of the failure to show "substantial likelihood of success on the merits," given the feebleness of the federal claims that were asserted. The unnamed Remedies teacher has nothing to say about this requirement.

The statute did not purport to eliminate the need to show likelihood of success, and if Congress had produced a text that did, the statute would have had a severe constitutional problem. Hewitt says it's wrong to presume that Congress would enact a "pointless" statute, and without the preserving Terri Schiavo's life, the effort would be pointless. But the federal courts did consider the federal rights, as directed in the statute, and because of the unlikelihood of success on the merits of those federal claims, it did not order relief. Are we supposed to substitute an imagined text that Congress didn't write, because of what we think some members of Congress were hoping would happen in the courts? What a ridiculous way to do statutory intepretation! How can anyone taking this position ever again complain about activists judges?

Hewitt continues:
The reason some scholars may have come to an opposite conclusion may be that they found the dismissal of Congressional intent acceptable in the face of the underlying issue of the law's constitutionality. Had the federal courts concluded that Congress could not do what it did, then respecters of the rule of law would have either to defer or argue that the damage done to principles federalism [sic] was worth the intrusion -- a much harder case to make than the argument concerning the intent of Congress.

This is not the basis for my conclusion. In fact, I took a lot of heat on the conlawprof email list arguing that Congress did have the power to pass this statute. I think some of the "intent" that Congress failed to express in the language of the statute was left out because it would have created constitutional problems. For example, if Congress had dictated to the federal courts that they issue a particular form of relief or if it had instructed the federal courts to redo the state law parts of the case, the statute would probably have been unconstitutional. My post was completely focused on following the text of the statute, and though this part of Hewitt's post is not specifically tied to me, I resent the implication that I am merging and overlapping issues this way. The fact is that Hewitt's post does not look carefully at the statutory text and does not deal with the specific textual points I made. He's the one making a mush of things.

Why, seriously, does he think so many federal judges took the position they did? Why did the United States Supreme Court not intervene? Not one Justice wrote a dissent from the denial of certiorari. All these able jurists are just outrageously sitting back, flouting the will of Congress and allowing a woman to die? Does that make any sense? And do you really want your readers and listeners to think the judicial system is not grounded in the rule of law?

UPDATE: A lot of emailers are pointing to cases they think were mishandled and asserting, based on these cases, that the judicial system really is not grounded on the rule of law. Failure to live up to the highest ideals of the rule of law does not mean the judges have lost touch with the imperatives of the rule of law. Don't let imperfection shatter your faith in what is one of the greatest resources created by humankind. But also -- those cases that you think were mishandled: are you sure the courts not only erred, but flouted law and simply did what they wanted? Or is your vision clouded because they didn't do what you wanted?

Friday, March 25, 2005

Zoom Quilt!

It's mesmerizing! (Via Drawn!) Yow! It's still reeling through my head...

Badger victory.

Congratulations to the UW men's basketball team, whose win tonight puts them in the final eight of the NCAA tournament. There are many happy people here in Madison. As usual, I don't care about sports, but I'm happy to be in a city full of happy people.

Why aren't Republicans and Democrats consistently compassionate?

What exactly did Ralph Nader say about the Schiavo case on "Crossfire" the other day? People keep emailing me about it. So, let's look at the transcript:
NADER: I must say, I don't see a government interest in denying the parents their desire to take care of Terri. I don't see a government interest.

I think that shifting the guardianship from Michael to the mother and father of Terri is the way to resolve this. Nobody knows what Terri would say. She was alleged to have said something, hearsay, to the side of the family of her husband. She didn't talk about feeding tubes. She doesn't have a ventilator. She doesn't have a heart pump. I don't see the government interest.

So, this puts me on a different political spectrum than Eleanor Holmes Norton. And so, let me put it this way. The Democrats usually are very compassionate about preventing occupational diseases and air pollution and medical malpractice deaths and so on. And, on this, they seem to be in the harsh arena. Apart from all the quibbles about jurisdiction, we're getting right down to who should be the guardian here.

And, on the other hand, the Republicans were so vocal with their compassionate statements on Sunday about this one person. And they are about as cruel as I have seen a political party on hundreds of thousands of preventable deaths on the job, in the environment, and in hospital malpractice. Can you bridge that gap?

(CHEERING AND APPLAUSE)

NADER: Can you bridge that gap?

[National Right to Life legislative counsel Dorothy] TIMBS: Well -- well, first of all, you know, this issue is not about Republicans and Democrats. If you look at the House vote, you had almost as many Democrats who voted for this issue as we had -- as we had Republicans. In the Senate, we had some disagreement about the form that the bill should take, but there was no formal objection. So, I'm not going to speak to that. If you disagree with Republicans' positions on other things, you know, I'm sorry for that. We're not even a Republican organization. This issue is about the rights of just people with disabilities.

Senator Harkin recognized that. And that's why he took the lead on this as well. And I'm happy to hear that you agree that the guardianship should go to the parents, which...

Eleanor Holmes Norton, Alan Dershowitz, who, like Ralph Nader, is an honest guy, says that this -- if this were a death penalty case and the legislature was saying no, the liberals would be jumping up and down. If you had some murderer, a murderer who was about to be murdered and the -- and this sort of thing was going on to save -- to make sure he was killed, the liberals wouldn't like it. Isn't that true?

[Delegate Eleanor Holmes] NORTON: I don't know what Alan is talking about.

The fact is that the right to life, let's base this on the fact that murderers can in fact go into court, but on a much more limited circumstance than was allowed for this single person in this case. And that's the important thing to remember. Yes, if the state is going to deprive you of your life, it is she who said that she did not want to live under these circumstances.

If the state is going to deprive you of your life -- if the state is going to deprive you of your life, then, of course, habeas corpus obtains, very limited habeas corpus today.

Nader asked Timbs and Norton a great question: Why aren't Republicans and Democrats consistently compassionate? Timbs and Norton filled the airspace with words but made no serious attempt to answer the question.

I'm not a Nader fan, but I can recognize a great question when I see it. I haven't seen much blogging about the Nader's contribution to the Schiavo debate, but, judging from the email I'm getting, people are focused on the fact that Nader took the side he did. I'd rather read answers, from Democrats and Republicans, that really try to face up to the challenging question he asked.

UPDATE: I'm getting email and seeing some blog posts trying to answer this question. One answer is that "compassion" is just self-serving rhetoric, which is owning up to the hypocrisy Nader implied by asking the question. Liberals try to meet the challenge of the question by saying that it is compassionate to allow Schiavo to die. Social conservatives try to meet the challenge of the question by saying that conservative economic policies really are compassionate -- Nader would require such intensive regulation that there would be economic effects that would hurt people much more than a little more air pollution and lower recoveries for medical malpractice.

"Many Advertisers Find Blogging Frontier Is Still Too Wild."

That's the Wall Street Journal's headline. (Via Memeorandum.)
[M]any companies are wary of putting their brand on such a new and unpredictable medium. Most blogs are written by a lone author. They are typically unedited and include spirited responses from readers who can post comments at will. Some marketers fear blogs will criticize their products or ad campaigns. And, like all new blog readers, companies are just learning how to track what's being said on blogs and which ones might make a good fit for their ads.

May I make a suggestion? Focus on blogs written by lawprofs!

The article has some good advice for designing a blog ad, from Mr. Blogads, Henry Copeland:
[H]e advises advertisers to think like bloggers, and remember they are joining an ongoing conversation, incorporate links to other sites and use a voice that fits the blog's general tone. Above all, he says, they should stop hitting readers over the head with giant logos. One good example he points to is an ad that Knopf, a publishing division of Bertelsmann AG's Random House, designed for Japanese novelist Haruki Murakami's most recent book. Rather than linking to a site that sells the book, Knopf's ad joins in the spirit of blogging by quoting and linking to other blogs that discuss the book, such as MetaFilter.

Yes! Adapt to our environment. Act like you belong here!

"The Office" -- American style.

I read some reviews of the new American version of "The Office," and they all seemed tortured by the very idea of replacing the British star with an American counterpart. Here's Dana Stevens in Slate:
No living human could reproduce the precise blend of vanity, pathos, and smarm that Ricky Gervais, the co-creator and star of the British series, brought to the character of David Brent, but Carell wisely re-imagines the role from the ground up; his version is less a buffoon than a dickhead, with the knitted brow and aggressive physicality of Ben Stiller. He also wears his self-loathing closer to the surface than his predecessor did; where Gervais was wrapped in a cocoon of self-regard, Carell seems constantly on the verge of a temper tantrum, or possibly tears. Carell understands the needy, unlovable Michael Scott from the inside out. But some characters belong to the actor that created them; stepping into such a role, any other performer is as doomed as a singer covering a Bob Dylan song.

Now, wait a minute. What a terrible analogy! There are countless brilliant covers of Dylan songs! Dylan made his way into public favor through the work of the artists who covered him -- Joan Baez; Peter, Paul & Mary; The Byrds. A great thing about Dylan has always been how wonderfully well his songs transform in the hands of another singer.

But back to "The Office." At my house, we were laughing through the whole show, and we especially enjoyed Carell's reinterpretation of the role.

A sidenote: I kept trying to figure out where I recognized that actor Rainn Wilson from. He's Arthur from "Six Feet Under"! Great! I always missed Arthur.

"They used to have a couple of whorehouses in town -- are they going to bring those back?"

So said a man old enough to remember speakeasies in Green Bay, Wisconsin, where there is a referendum about ending a 110-year-old ban on serving liquor in hotels and restaurants. Here's the Wisconsin Public Radio audio clip.

UPDATE: On April 5th, residents voted to lift the ban.

"Morality is the best of all devices for leading mankind by the nose."

Maureen Dowd quotes Nietzsche. The topic is, naturally, the Schiavo case. But is morality really working as a device for manipulating the electorate? As Dowd notes:
A CBS News poll yesterday found that 82 percent of the public was opposed to Congress and the president intervening in this case; 74 percent thought it was all about politics.

I'm sure some core of Republican voters is satisfied by Congress's ineffectual overreaching on behalf of Schiavo, but there are other people -- like me -- who are reminded why, though we voted for Bush, we don't feel at all at home in the Republican party.

Is it possible to explain the Schiavo statute on television?

I watched a number of the cable TV news analysis shows last night (and in the last few days), and I am appalled at the failure even to raise the most basic legal point about the statute Congress passed. Time after time, I heard people -- like Fred Barnes on Fox News's "Special Report" -- say that everyone knows that Congress intended to give Terri Schiavo a de novo hearing, in which the federal court would disregard everything the state courts have done, and that the federal courts ignored the statute that Congress went to such extraordinary lengths to pass. Those who took the other side of the question and supported what the federal courts did kept making statements about how wrong it was for Congress to want to disregard the work of the state courts, how Schiavo's plight shows why one ought to have a "living will," or why Schiavo is really better off dead. Christopher Hitchens did an especially abysmal job on "Hardball," repeatedly saying that Schiavo was "brain dead" and that there simply was no life even to be talking about.

Regardless of what people like Barnes think Congress intended, the federal courts were given a statutory text to follow, and the fact is they followed that text. Yet the TV commentators -- at least what I heard -- never made this most basic point. Barnes and his ilk relied on material in the second part of the statute, headed "Procedure." That section gives Terri Schiavo's parents standing to bring a lawsuit and says:
In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

But the substance of the statute -- as opposed to the procedure -- is in Section 1:
SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

Those procedures outlined in Section 2, including the authority rehear claims de novo, apply to the "suit or claim" provided for in Section 1. Read the boldface text: the statute only authorized the parents to bring federal law claims. It gives no authority to redo the state law claims, which is what the state courts relied on in appointing the husband as the decisionmaker and so forth.

The parents' complaint in federal court had only a few skimpy federal claims to make, and the federal court denied preliminary relief because there was very clearly no "substantial likelihood of success on the merits" on these federal claims. The main federal claim was a violation of due process, which had to include consideration of the quality of the state court's work. The federal courts in no way flouted the federal statute. It's irrelevant that Congress managed to make people think it was doing things that it never put in the statutory text.

Did any of the talking heads on the news analysis shows make this point? I didn't hear it. Yet this is the main legal point that explains what the federal courts did. Maybe somehow it's too technical or dry to say on television. The other night, Harvard lawprof Laurence Tribe was on Greta Van Susteren's show and not only didn't he make this point, he asserted that every legal expert thinks the statute is completely unconstitutional. But it wasn't so obviously unconstitutional that the federal courts started there. If it was so unconstitutional -- "up, down, and sideways," as Tribe put it -- why didn't the court begin with that? It's a jurisdiction-granting statute. If there is no jurisdiction, there's nothing more to say. It should have been easy -- if Tribe is right about blatant unconstitutionality -- to say the statute purports to give the court jurisdiction, but the statute is unconstitutional and therefore void. Why then did the court presume jurisdiction and move on to the likelihood of success on the merits? Because the unlikelihood of succeeding on the federal claims -- the only claims that could be at stake under the statute -- was so painfully obvious.

I was tearing my hair out last night listening to all this TV analysis and not hearing any focus or even mention of the need for federal claims under the new statute. There is so much talk on TV talk news -- round and round with emotional assertions and clips of suffering faces -- but there is an abject failure to explain the actual legal points. The judges who did the work in this case can't go on the show and explain what they did, and no one serves as a proper voice for them. The audience is left to think that judges are arrogant, insulated, illegimate, and heartless. What a sorry display!

UPDATE: Welcome Instapundit readers. And sorry I missed Glenn's presentation on Kudlow, which did try to explain the legal distinction on television. He writes:
I'm quite astonished to hear people who call themselves conservatives arguing, in effect, that Congress and the federal courts have a free-ranging charter to correct any injustice, anywhere, regardless of the Constitution. And yet my email runneth over with just those kinds of comments. And arguing that "it's okay because liberals do it too" doesn't undercut my point that conservatives are acting like liberals here. It makes it.
Yes, it really undercuts what these so-called conservatives can say about judicial appointments now, doesn't it? They've blown their credibility.

ANOTHER UPDATE: And thanks to AmbivaBlog for the plug.

YET MORE: Here's the "Hardball" transcript with the Hitchens material referred to in the post. An excerpt:
The thing is, there‘s no role for anyone in this case, because there isn‘t a life, unfortunately, to save. Mrs. Schiavo is dead and has been for some time. ...

I don‘t know whether Mr. Schiavo was able to interpret his wife‘s wishes or not when she was alive. But she‘s now dead. ...

I‘m a materialist. We don‘t have bodies. We are bodies. When the brain is gone, you are gone. No physician who‘s attended her in any capacity has said that she‘s anything but totally brain-dead. She‘s not disabled. She‘s gone....

Her brain has shrunk to a point where it‘s no longer human. As you say, the—full of fluid. All people want to know at the point like this is how one can decently put an end to it. I must say, I find it revolving, the idea of—even if she can‘t feel anything, something in me rebels against the idea of, as they say, starving her. If I was a physician, I would just give her a morphine injection. And that is what is often done.

AND EVEN MORE: Hugh Hewitt links to this post. My response to him is here.

Thursday, March 24, 2005

"American Idol" -- goodbye to Mikalah.

With the results on Thursday, I'm deprived of the TiVo, because Chris insists on TiVo-ing "The Apprentice" -- a show I can't tolerate anymore. How can I tolerate "American Idol"? Oh, well, that's a mystery! How can anyone? But without my TiVo, I'm forced to watch the commercials. Some of them are pretty damned good, like the one with the freshman boy trying to get nachos out of the vending machine and ending up pressed against the glass inside the machine.

As entirely predictable, Mikalah says goodbye tonight. Interesting how "America" gets it right most of the time. Mikalah missed way too many notes, and she lost her wacky charm. They did a nice clip montage for her, reminding us of her sweet eccentricities. But she really did need to go. In the bottom three with her were Anthony and Nadia. Nadia! -- who many people thought would win the whole show! Let this be a lesson, don't touch the woman's hair! She needs the full Nadia hairstyle to distract us from the voice that isn't quite all there.

What else was interesting tonight? Maybe the way the camera zeroed in on Jessica, who wept to see Mikalah go. Maybe the way Scott mouthed a wordy prayer once again as he waited for his verdict. Maybe the Ford commercial they imposed on the kids, with Constantine carrying a giant spoon. Oh, and I'd almost blocked it out of my head! There was the group sing of "He Ain't Heavy, He's My Brother." The road was long, listening that one out.

Disaster city.

The BBC tells the story of Texas City, where a huge explosion killed fifteen persons yesterday. My parents survived the great 1947 explosion that killed 576 people, as I described here (scroll down to "Me and Texas").

Madison politics: "I love my bubble."

Local politics, Madison-style:
Austin King says he has accomplished a lot in his two years on the Madison City Council. But he boils the race down to this:

"This district is a very young and progressive district," he said of the downtown District 8, populated by many students. "My opponent's an older conservative guy. From a purely demographic point of view, I don't think he stands a chance."

His opponent, Kimia Lounge owner Kami Eshraghi, argues that he would fit in better on the council, where King is by far the youngest member. And although Eshraghi describes himself as a Democrat, he said that sometimes King goes too far left.

"It's hard to be to the left of him," Eshraghi said. "I'd like to point out that I'm the same age as the other alders. ... The key is experience, and this is not a student government job. This is a city job. We need someone with experience."...

King said the city gets a bad rap as being too idealistic.

"People are always telling us that in Madison, we're in a bubble. I used to fight that. We're in a bubble where people around us don't think logically," he said.

"How can you ask someone who thinks Jesus is coming back to Earth to care about global warming? Yeah, Madison's my bubble. It's a bubble of intellectualism and deliberative democracy and discourse. I love my bubble."

King, by the way, enjoys calling himself the "lefty's lefty."

UPDATE: I just reread this post and was struck by the line: "although Eshraghi describes himself as a Democrat, he said that sometimes King goes too far left." Strange use of the word "although," isn't it? What is the Capital Times saying? That Eshraghi claims to be a Democrat, but that claim is undermined by his seeing King as too far left? Democrats are supposed to go as far to the left as possible?

"I am broke, but I hide it well."

That's how Ozzy Osbourne responded to Jon Stewart (on "The Daily Show"), who said he expected to find him "broke" (i.e., a broken man).

Soothing music.

Recently, I collected suggestions for music to help you read and study. Over at About Last Night, they're collecting suggestions for music to ease and calm your mind in "times of extreme mental disruption."

Disorderly acting.

A woman looked out the window the Madison Public Library, thought she saw an armed assault taking place on the top level of the Overture parking ramp and called the police. The police showed up to find five UW film students staging a scene. The State Journal reports:
"Immediate compliance (by the students with) officer commands saved what could have been a tragic incident, as the fake gun appeared real," department spokesman Mike Hanson said.

"We were making a film," explained Fuezi Balli, one of the five students - four crew members and one actor - involved.

"There was a gun involved in a sequence for 10 minutes or so and someone saw it. The director didn't report to anyone that we were going to be doing something like that," he said.

"It was a fake gun, I was holding it," he said.

The production, called "Blake," was for an advanced video production and direction class, he said.

"We definitely didn't think anyone would see us doing it," he said.

They were on the exposed top level of a parking ramp, visible from other buildings!
"When an officer responding to this hears a gun call, there is an extra, heightened alert and certain tactical maneuvers are put into place. From a distance if they were to see one individual holding a gun to someone's head, the officer might have to use deadly force to stop that. In (Wednesday's) situation, fortunately, the people complied with the officers right away. But when everything is fluid and moving fast, we don't always have the time to (confirm) if a gun is fake or not."

Two weeks ago the department's SWAT Team responded to the Atwood Community Center to rescue a woman they - and passers-by - believed was being held at gunpoint, only to find that the scene was part of a play rehearsal.

Aren't you glad to know the new generation of storytellers has a firm grasp on how the real world works?

UPDATE: I'm getting a lot of similar anecdotes in the email. Here's a good one (from Hana Volokh of Purr Se):
When I was in high school (10 years ago! That seems like forever!) one of my teachers assigned a group project on something or other. One group (not mine) decided to make a cops-style video for their project, and one scene involved tying up a guy and putting him into the trunk of a car. After filming it, they proceeded to let him out, of course, and then they got in the car and drove somewhere else. But they never got there, because a police helicopter had seen them shove the guy into the trunk of the car, and they were swarmed by about 10 police cars a few minutes later.

Thankfully, nobody was hurt or arrested. They finished the video and showed it in class. It was mildly amusing, and you could definitely hear the sound of the police helicopter in the car-trunk scene.

"100 Years of Illustration."

Here is a beautiful weblog dedicated to the art of illustration.

Wednesday, March 23, 2005

"I don’t want to live like a dead soul. So these days I am blogging..."

Blogging in Nepal:
Journalists in Nepal are going hi-tech to sidestep tight censorship imposed after last month’s royal coup....

“I feel that our very own survival, intellectually and mentally, depends on freedom,” says Dinesh Wagle, a newspaper journalist who runs United We Blog!...

“I don’t want to live like a dead soul. So these days I am blogging for a peaceful and democratic Nepal,” he said in an e-mail interview. King Gyanendra seized power on February 1, arresting government and political leaders, rights activists and journalists.

He also banned media criticism of his move, which he said was aimed at ending a nine-year Maoist revolt that has killed 11,000 people and shattered the tourism and aid-dependent economy.

But United We Blog! and another popular blog, the anonymous Radio Free Nepal..., publish interviews with arrested political leaders and news about anti-king protests that the mainstream media cannot.

“I am blogging the truth as I see and as I think,” says the print journalist running Radio Free Nepal.

Coney Island.

Nina has a lot of nice photos from Coney Island, along with a description of a spitball-plagued subway ride there. Keep scrolling for more NYC pictures.

Café photos.

This morning, I sat down with my book at a table in the front window of L'Etoile Café.



A nice croissant:



A cup of coffee:



A woman reading at the next table:



You can watch the people walk by:



And try to figure out what kind of plant that is:



Refill that coffee cup about four times:



When you get tired of the piped in Ella Fitzgerald and Willie Nelson, there's always the iPod shuffle:



Isn't it beautiful?



So touchingly minimal and filled with minimal music.