January 2006 Archives

I'm doing Moot Court this semester. Moot Court is a mandatory project (worth 0 credits) designed to improve writing and argumentation. Students are all paired up into teams. Each team is given the facts and history of a case, and is assigned to write a brief arguing for one side on appeal. Each team is matched up against another team arguing on the opposite side of the case. Once the briefs are written and submitted, the teams present their briefs and argue their cases before a panel of judges. Somebody wins, somebody loses, there's a lot of criticism, hard work, and heart-ache, and in the end everybody passes. It has absolutely no impact on your future because it's a pass/fail requirement worth 0 credits.

Nonetheless, the topic my partner and I are working on is somewhat interesting. Here are the (highly abbreviated) facts. Note that I have expunged all of the proper names from these facts, because the original names were annoying and distracting:

Plaintiff #1 is a publishing company in San Francisco, located on Market Street. Sometime in 2004 they set up a wireless network for their office. They didn't hire a professional to do it; they just had the teenage son of one of their employees set it up. The network was left entirely unsecured, and no password was required for access.

In December of 2004, Defendant, a computer programmer, moved into an apartment across the street. He set up his computer and it automatically connected to Plaintiff #1's wireless network. Defendant used Plaintiff #1's wireless network as his internet connection for the next year or so.

Beginning in December of 2004, Plaintiff #1 noticed a massive slowdown in the speed of their wireless network. The performance degradation led to generally spotty internet access, which caused them to lose an account worth $10,000 due to a broken connection in February. Their internet service provider informed them that they were using too much bandwidth, so they purchased a more expensive package.

This solved their problems until October of 2005, when the network slowed down again. This time they brought in a professional network specialist to examine their network. He discovered the slowdown was coming from excess downloading, which could be traced to an outside IP address.

Eventually they found Defendant. They sued him under the federal Computer Fraud and Abuse Act, alleging that he intentionally accessed their network without permission, causing in excess of $5,000 in damages. Defendant argued in reply that they implicitly granted permission to access their network by leaving it unprotected, or alternatively that he was justified in believing that they had granted him permission, and therefore he can't be held liable.

Defendant's problems do not end there. In hunting Defendant down, Plaintiff #1 learned that Defendant had been downloading episodes of a television show off of the internet. The show in question is a day-time talk show. It airs live at 11 AM on the west coast, and never shows re-runs. There are no plans to release it on DVD, nor are there plans to distribute it over the internet, via an iTunes-like service. The show has a viewership of 2-3 million viewers, of whom, according to the Nielsen ratings, about 95% are women aged 35 and up. Defendant is not a woman aged 35 and up.

Defendant learned of this show some years ago from a friend. Since then he has been an avid fan of it. Unfortunately, his work schedule prevents him from watching it live, and his faulty VCR prevents him from recording it in the traditional manner. Therefore, he took to downloading episodes from the internet. He found a website, whose owner he does not know, that uploads copies of each episode of the show after it airs. Each evening, Defendant would go to the website, download the day's episode, and watch it. To save bandwidth and get the episodes up quickly, the recordings are low-quality and all the ads are left in. Defendant sometimes would watch the ads and sometimes would fast-forward through them. He never watched the episodes with other people (it's not the sort of show that young computer programmers usually watch) and he deleted the episodes shortly after he finished watching them, to make more room on his hard drive.

Plaintiff #1, upon learning that Defendant had been downloading the show, informed Plaintiff #2, the production company that makes the show, of Defendant's activities. Plaintiff #2 sued defendant for copyright infringement. Defendant argues in reply that his activities constitute fair use of the copyrighted material.

On motion, the two cases against Defendant were joined into one case. On a motion for summary judgment, the trial judge found for the plaintiffs: There was no dispute as to facts, he ruled, and Defendant was liable to both plaintiffs under a reasonable reading of the law.

Defendant has appealed the summary judgment ruling. All facts are to be construed in the light most favorable to Defendant. The two parties will only be disputing over the legal arguments presented, in the first case that Defendant was granted, or was justified in believing he was granted, access to Plaintiff #1's network, and in the second case that Defendant's viewing of Plaintiff #2's show constituted fair use.

Fresh Direct Adventures


After putting it off for far too long, I ordered a nice stock of groceries from Fresh Direct on Friday, and they came today. Some interesting things in the order:


I ordered some turnips, and they ended up being quite anemic. I'm used getting turnips from Fresh Direct the size of baseballs or larger; three turnips usually provides enough turnippy goodness for 2 or 3 meals. This time, I got turnips just barely larger than golf balls. That'll be enough for one turnip dish, if that. I mean, I obviously was charged less for them, since I'm paying by weight, but it's still a bit frustrating.


This is somewhat compensated for by getting way more daikon radish than I anticipated. I ordered one on a lark, because I like to experiment with new vegetables. I knew vaguely what a daikon raddish looked like, but I don't think I had a proper conception of the size. It's a cubit long! This thing barely fits in my refrigerator; I have to lay it on the bottom shelf at an angle in order to be able to close the door. Hopefully I'll find something tasty to do with it.


These are not tomatoes. It's pretty rare that I buy fresh tomatoes from the store; I tend to find them acidic and flavorless and generally not worth the effort. Heirloom tomatoes in the height of summer, though, are well worth it. Other than that, I stick to canned.

But these are not tomatoes. No, these are habanero peppers. A pound of habanero peppers. They will go nicely with the serrano, jalapeno, and poblano peppers that also came in my order. I'm inclined to predict there will be a significant increase in the capsaicin of my dishes in the immediate future.


Fresh Direct examines your orders and periodically throws in samples of products it thinks you might like. The idea is that if you like the sample, you might buy more of the product in the future. I can't help but wonder, based on the product they've thrown at me here, if Fresh Direct thinks I'm gay. The bright pink can, the ad copy ("Fuel to be Fabulous!") etc. Not that there's anything wrong with being gay, and not that they're neccessarily off base, but I can't help wondering what I've been buying that made them draw the conclusion. Perhaps it's the 18 inch long phallic radishes.

As for the Tab Energy? Eh. It's alright. I'm not really a Red Bull drinker, and it has that same quality to it. It has something of a strawberry flavor, which I don't associate with Tab. I'm also a bit surprised that the Coca-Cola corporation, the owner of the Tab brand name, would resurrect it for an energy drink. I don't mind Tab, per se, but I know a lot of people who do. In any case, it's a brand that's been on life support for about 20 years now. What gives?

UPDATE: Hey! Where's my eggplant!

I ordered an eggplant. I paid for an eggplant. I received no indication that there would be no eggplant. It's on my packing receipt. Fresh Direct claims to have given me an eggplant. But lo! There is no eggplant at all! That's a buck-fifteen they charged me for an imaginary eggplant, which, I feel, is a lot to pay for an imaginary vegetable.

Some may say that this isn't that big a deal, and I'm making too much of this. To them I say, without fear of exaggeration, that this is the greatest crime in American history. For when we are forced to pay for eggplants that don't exist, we sacrifice our freedom of choice, to choose to pay for real vegetables, and not imaginary ones. The slide into grocer tyranny is both readily apparent and inevitable.

Seriously, though, is this worth calling to complain about? I guess so; I paid for it and they didn't give it to me. But it's just about a buck, and I'll feel kinda silly having a driver come all the way to my house to give me an eggplant. I didn't really have big plans for the eggplant in any case.

Faith and Incarceration

Courtesy of ABC News, we have a report on a faith-based prison in Florida.

Florida is where nearly half of all felons released end up back in prison within five years. The state's prison system doesn't seem the most likely to enlighten its inmates.

In December 2003, Gov. Jeb Bush converted the medium-security Lawtey Correctional Institution into the nation's first entirely faith-based prison.

The governor put his plan into motion by stating "people of all faith, people who believe in a higher power are compelled to take actions in their lives that improve their chances of living a wholesome life that is crime-free."

At Lawtey, 28 different religions are represented — Christianity, Orthodox Judaism, Wicca, Scientology.


Since Gov. Bush oversaw the conversion of Lawtey, Florida's Department of Corrections has opened two more faith- and character-based prisons — one for inmates serving long sentences and another that's exclusively for women.

The state plans to open as many as 30 more. The state believes that these kinds of programs mean less disciplinary action and lower recidivism, but no scientific study has proved anything of that nature.

There are a lot of interesting thing to talk about here, and I'm going to ignore a lot of them for now (though feel free to raise issues in comments). Obviously there are constitutional issues, fairness issues, broad questions of compulsive rehabilitation, and pragmatic questions of how effective this scheme actually is. The report is quite brief and maddeningly short on details about how the prison actually works; are prisoners forced into services? Are there provisions for the non-believing? How, exactly, is this prison run, and how is it different from the average Florida prison? The article says nothing other than that there are a lot of religions represented and that this prison somehow involves more religion than other prisons.

These are all excellent topics for discussion, but they aren't what I'm most interested in here. What's notable about this scheme is that it harkens back to the original concept of incarceration in the United States.

Incarceration as a form of criminal punishment is actually a fairly new phenomenon in the world, and one that was first widely implemented in the early Republican period in the United States. Incarceration was pretty rare before then. There were jails, to be sure, but they were used mostly for holding the accused between arrest and trial, and for holding the convicted between trial and punishment. They were temporary holding cells only. Punishments in the colonial days and earlier tended to involve a combination of fines, public humiliation, corporal punishment, and the death penalty. Further, all of these punishments were highly public. This served two purposes: public humiliation shamed the criminal into behaving well, and public punishment demonstrated the power of the government to the public at large, in theory scaring them straight.

With the birth of the Republic came a uniquely Republican form of punishment: the loss of freedom. Americans value their liberty above all else, so we shall punish the criminal by taking his liberty away from him. This led to the construction of the first modern prisons, designed to house large numbers of inmates and accomodate a new form of punishment: long term incarceration.

The other major shift between the old style of punishment and incarceration-oriented punishment was in the religious aspect. The old style of punishment involved an elaborate ritual of penitence and absolution. It is well known that the death penalty applied to a great deal more crimes in the colonial period than it does now, and that the death penalty was far more commonly applied. What is less well known is that clemency was also far more common in those days. Those condemned to die would write elaborate confessions (often published for the public to read, and many times copied and handed out at the execution), explaining where they went wrong in life, taking responsibility for their sins, resolving to devote themselves to a life of virtue, and begging for forgiveness from the community and, particularly, the governor. The prisoner would go through the entire ceremony of the public execution up until the last second, at which point, if clemency was granted, the noose would be removed and he would be told he could go free. I don't have statistics with me now, but I believe that the majority of death penalties in the colonial period were commuted in this manner. I could be wrong, however, so don't take that as gospel.

There was a shift in this view in the period of the early Republic. The emphasis on clemency of the executive had a rather monarchical character; the ritual made it seem as though the executive was acting as God's surrogate. We have a sinner who is to face eternal punishment, and, if the governor/God decides that the sinner has a truly penitent soul, the governer grants absolution for the criminal's sins. Throw in the background of Divine Right of Kings political theory, and you can see why this relationship between governor and governed would be uncomfortable in the United States.

In the early Republic, the idea was that we put our faith in The People, not in some omnipotent sovereign. The citizen, in this view, is basically good and moral, intelligent and capable of self-governance. For this, they are given the privilege of liberty. Sometimes, of course, they go astray, and in those cases their liberty must be restrained until they can set themselves right again. The emphasis in imprisonment was on self-correction. Prisoners were put in solitary confinement to meditate upon their life and upon God, and to see how they had gone astray. They were given some make-work and basic training in skills, on the theory that learning a trade was a major element in being a productive person of moral worth. And they were given Bibles, that they might read them and learn from them lessons of how to live rightly.

It's at this point that punishment shifted from public to a private. Punishment was no longer about shame; rather, it was about an internal moral journey, to be made by each prisoner for himself. They were handed the tools of moral redemption, locked in a room with them, and left to their own devices to reform themselves. It is from this view of punishment as a means of personal redemption that we get the term Penitentiary, meaning a house for penitence.

Without going into the details of the further evolution of the American penal system, things didn't work out so well at these early faith-based prisons. The strict solitary confinement and utter lack of human contact caused a lot of prisoners to lose their grip on sanity. Prisoners were also not as inclined to reform themselves on their own as the prison theoreticians would have hoped. There was a lot of small-scale rebellion, which led to corporal punishments and other means of keeping prisoners in line. Further, it's not very economical to have a system of prisons with elaborate solitary confinement schemes; in short order the prisons became over-crowded and solitary confinement was abandoned.

These are all problems with the peculiar early Republican scheme of penitentiaries, and says nothing about the current faith-based prisons in Jeb Bush's Florida. Nonetheless, it is interesting to note that this new scheme is a hearkening back to the early days of incarceration.

Lawyer Shows

I haven't watched TV to a serious degree in years (I'm too cheap for cable, and couldn't get very good reception at my apartment in Berkeley). Now that I'm in Law School I thought I'd start watching some lawyer TV shows, since now I'm somewhat interested in the subject. And I'm shocked! Shocked! to discover that there are hardly any on the air anymore. The crime dramas now are all criminal investigation shows like CSI, NCIS, Cold Case, The Medium, etc. There's still a fair share of doctor shows like E.R., Scrubs, House, and Grey's Anatomy. But I can only find two explicitly legal shows: Boston Legal and Law and Order (which is, itself, 50% a cop show, and from what I can derive has been more cop than law lately). Where has Perry Mason gone? Wither Matlock? What about L.A. Law, The Practice, Ally McBeal and all the other shows about lawyers? Doesn't the American viewing public care about lawyers anymore? Come on! Our adversarial justice system may be a piss-poor means of ensuring equal access and a fair trial for everyone, but it's great for dramatic television! We've bent over backwards to accomodate the American need for showmanship, and this is how you repay us? With three flavors of CSI and a gaggle of doctor show? Frankly, I'm disappointed.

Big Philosophical Questions

Between Constitutional Law, Criminal Law, Property, and Law and Philosophy, there've been a surprising number of Big Philosophical Questions coming up in my academic life lately. Not, generally, philosophical to the highest level of abstraction, but philosophy as applied to high-level political organization. I think these are interesting questions, and I'd be intrigued to hear how you all would answer them.

These aren't, generally, questions that are debated in current politics, so they're not emotionally-charged (No "Does life begin at birth, or conception, or somewhere in between?" type questions). They're about political organization, but they aren't necessarily fought over by the political parties in America today. Also, I'll try to phrase them in a non-loaded way, since I think all of them are subject to legitimate debate.

1. (I'll start with a very broad one) Should the morality of an action be judged based on overriding moral principles, irrespective of the action's consequences, or should morality be judged based on what the likely real-world consequences of that action will be?

2. What is the goal of criminal punishment? To visit retribution on the criminal for an immoral offense against society? To deter future crime? To rehabilitate the criminal?

3. Is it better for judges to mechanically apply the law in all cases that come before them, regardless of the circumstances under which the case arose, or for a judge to have little regard for prior precedent, deciding each case on an individual basis according to personal theories of what is right and which party deserves to win (subject to the constraints of the relevant legislation)?

4. Where do rights come from? Do we have rights because they are practical and useful for society, or do rights come from some outside moral rule (be it God's Law, Natural Law, Human Nature, an inherent sense of justness and fairness, or whatever else)?

5. Should government be bound by past generations? That is, if the popular, democratic will wishes to do something which is opposed by some aspect of the constitution, should the people be forbidden from doing what they wish because, at a time in the past, a sufficient number of people believed otherwise and codified this belief in the Constitution?

6. To what degree should a democratic society be governed according to the popular will, and to what degree should it be governed by non-elected experts?

7. In setting up a scheme of representative government, should the priority be towards maximizing responsiveness of the national government to the national will, or maximizing responsiveness of individual representatives to the community they represent?

For all of these questions, even though they're framed as A or B, don't feel obliged to take the extreme. You can militate or mix as you like, though I'd like to know which side you lean towards intuitively.

Movie Review: Coyote Ugly


I need to do a non-law related post, but law school has occupied essentially all of my mental real estate the last couple of weeks. Still, I found time last night (between 1 AM and 3:30 AM) to watch Coyote Ugly. I'm glad I did; I believe I have found the Funky Town of film.

What I mean by that is, just as I feel Funky Town is the platonic ideal entertainingly bad song, I now feel that Coyote Ugly is the platonic ideal entertainingly bad movie (I realize not everyone shares my opinion on Funky Town. Feel free to substitute your own favorite terrible song in its place).

Coyote Ugly tells the story of Violet, a young woman who aspires to be a songwriter. She decides to follow her dreams by packing her bags and moving to the Big City. This is preceeded by a lot of long, heart-felt goodbyes and terrible, terrible speeches. This is the screenplay's first major misstep. We are expected to become emotionally invested in her move from the small town to the big city. She's making her way somewhere new and exciting! She's all alone and on her own! She's leaving everyone she grew up with behind and forging her own path in a foreign land! But the screenwriters didn't want her moving too far from home, because they wanted to bring her dad (played by John Goodman) in for occasional wacky hi-jinks. So her hometown is South Amboy, New Jersey. They drive the silliness of all this home by mentioning off-handedly that South Amboy is 41 miles from New York City. So she's making it by herself... less than an hour from home. This makes a lot of the movie seem melodramatic and pointless. She has a house 41 miles away. There's no real reason why she should be living in New York City; she can do the aspiring song-writer thing just as easily from home, driving into the city for gigs and pavement-pounding. Granted, she wants independence, she's starting her own life, etc. But whenever her ability to maintain herself in New York is threatened, the prospect of going home is seen as The Death of All She's Ever Dreamed Of. It clearly isn't; going home means The Death Of Her Somewhat More Convenient Commute.

She doesn't get any leads selling her music, except the following apparently iron-clad law: If you want to make it as a song-writer, the only way to do it is on the open mic circuit singing your own songs. I'm willing to buy that. I don't know enough about the music business to know where song-writers come from, and that seems plausible. But it's problematic for Violet because she is ineluctably shy about singing songs she has written. More on this later. She meets a guy with a cute face and an annoying Australian accent who will eventually become the love interest. And, out of desperation, she takes a job at a bar called Coyote Ugly.

As you know from the previews, Coyote Ugly is a bar where the bartenders are all attractive women who dance on the bar. Every night, including weeknights, the bar is packed wall to wall, because even though their liquor selection is poor (cheap tequila, cheap scotch, and cheap beer, marked up to thrice its normal asking price) this bar has hot women dancing on the bar. There's no stripping, no sex, just well-choreographed line dancing. If this movie were your only source of information about New York City, you might assume that women were incredibly scarce there, and that most New Yorkers would brave long lines to get into a terrible bar just for the opportunity to get a fleeting glance at one.

Violet is nervous about her new job at first, but eventually she finds her schtick: Standing on the bar and singing along to the juke box. This act is apparently so mind-blowingly awesome that it can stop a bar riot in its tracks. Further, it brings in hordes of new customers. Which throws the movie's biggest plothole into sharp relief: Violet is shy, but only about singing her own songs in front of other people. She can dance on a bar without any problem. She can stand on a bar and sing other people's songs. She can sing her own songs into a microphone and give the tape to other people. But she can't sing her own songs to others in person. Now, I sympathize with stage fright, but this is just bad writing. She's not shy about singing, she's not shy about singing in public, and she's not shy about people hearing her own songs, sung by her onto a tape. She is, in fact, boisterous about all of these activities. But when she has to sing her songs in public, she curls up into the fetal position. This is an astoundingly specific psychosis: "I'm afraid of visiting the third story of buildings after I get on the elevator on the fifth floor, but only on the second Tuesday in April."

Most of the movie is spent watching her blossoming romance with the Australian fellow, who helps her work through her oddly idiosyncratic stage fright by having sex with her in front of a bunch of cardboard cutouts of famous people. This is the movie's one redeeming scene. Granted, it's an entirely gratuitous sex scene, but Australian Guy actually has a really cute butt. Or at least his nude double does. In any case, there is a cute butt in the scene, and it makes the scene worthwhile.

The movie sort of meanders for two hours with a lot standard-issue plot conflicts thrown in at random (Australian Guy's dark past, Violet's father's disapproval of her job, Violet's father getting ill, Violet getting fired over a misunderstanding, Violet getting re-hired, Violet and Austrialian Guy breaking up over a misunderstanding, then getting back together, and of course, Violet getting her big break and becoming a star). Conflicts are introduced and resolved within minutes, and nothing of significance happens until the movie ends.

Having said that, it was a fun movie to watch. There isn't a single scene in the film that won't make you giggle at some point about how unrealistic and contrived it is. And to the movie's credit, the dialogue is at least reasonably snappy. It's decently acted for what it is, and the cinematography is agreeable. It suffers from a terrible script that goes nowhere, does nothing, and befuddles the viewer with its fundamental disconnect from reality.

I've heard this movie described as Showgirls without stripping. That's true only in the sense that they both use the same hackneyed plot. This movie is far less self-important than Showgirls, but it's also more competently made. The acting is better and the characters, while underdeveloped, are more likeable. It's a lot less painful to watch than Showgirls, but maintains the consistent level of goofiness you need to make a bad movie truly great. Recommended.

Euthanasia and the Common Law

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I've been waiting for an opportunity to discuss the quirkiness of the common law, and last night I found a great illustration.

Broadly speaking, Common Law, the system we use in American, is based heavily on precedents. The idea is that if a given decision is right for Person A in situation X, it's right for Person B who later finds themself in situation X. Moreover, it's efficient: Once the first case is decided, the world is on notice that this is what the law is and this is how cases are decided. The world can now conduct its business knowing what the law is. Precedent ensures stability. Finally, following precedent is fair. If Person A is found innocent in some situation, it's not fair that I should be found guilty if I wind up in the same situation.

The major alternative is the system followed in mainland Europe, Civil Law (Not to be confused with Civil Law as it's used in the United States, meaning suits between private citizens over damages or injunctions or such). The Civil Law is law based on a legal code. All law derives from the written word of statutes passed by the legislature. There's no such thing as a judicially-created cause of action, as there is in the Common Law. Further, each judge is ostensibly engaging in original reasoning from the text of the statute, without regard for prior opinions or standards or readings. All of this is more democratic than the Common Law; under the Common Law, a significant portion of how rules work and a goodly number of causes of action are created by judges in the course of rulings. That is, living under the Common Law, you are living, at least in part, under rules created by unelected judges.

(There are other major differences between Common Law and Civil Law countries, and be aware that I'm simplifying here by providing the Theoretical Ideal of the two systems. In practice, Common Law judges are far more bound in terms of what they can do than it may at first appear, and Civil Law judges actually do follow a form of precedent, albeit a weaker form than that used in Common Law countries.)

So here in America we have the Common Law, which we inherited from England. Having a judicial system that is the result of nearly a thousand years of gradual evolution, most of it occurring in a country an ocean away under a feudal political structure, leads to some odd quirks. The broad shape of our system was set by judges hundreds of years ago, and while democratic reforms have occured since then, there is still a very medieval English character to American law. All of the reasons I gave above justifying the Common Law are after-the-fact theoretical justifications developed by modern law professors. Often one will encounter an odd way of doing things in American law (Why do we have such bizarre rules about what evidence can be included and excluded?) and will try to explain, on rational grounds, why the rules should be this way. This is pretty much bunk; for most of the rules in the American system, the reason we do it that way is because that's the way we've always done it, and why should we change things now? Or, to put it another way, "Because if we didn't do it that way, the King would win!"

So we have a bunch of inherited legal rules that may or may not make sense to us now, but are as they are because that's how they've always been, and who are we to question them? Among these rules are the rules governing crimes of omission. Generally, you have to act in order to be guilty of a crime. You have to fire the gun to be guilty of killing someone. You have to steal something to be guilty of theft. The exception are crimes of omission, of which you are guilty for failing to act. This harkens to Asimov's First Rule of Robotics, the clause about not allowing humans to come to harm through inaction. If you're a babysitter and you neglect to feed a baby, and the baby starves to death, you're guilty of killing the child even though you didn't do anything.

The key thing in the babysitter case is that the babysitter has assumed a duty of care over the child. Without that duty, there is no crime. The law is very cautious about convicting people for inaction. Without a certain, well-defined special relationship, the law doesn't punish indifference. If you see someone choking to death on the street, you're under no obligation to help him.

This brings us to the peculiar case of euthenasia. It is illegal (except in Oregon) for doctors to assist in suicide. They can't write a lethal prescription, they can't give a lethal injection. That's murder. What if, however, the patient is on life support, and requires respirators, intravenous fluid, and other artificial interventions to supply? Can a doctor pull the plug, assuming the patient is comatose and unlikely to wake up?

This question went to the courts, and the courts decided that yes, the doctor can. This is because the court decided that giving life support is an action, and ceasing to give it is inaction. Therefore, it's an act of omission, and only a crime if there's a duty. After some strain, they found there was no duty of care between a doctor and a comatose patient, if the patient was unlikely to reawaken and the family consented.

So: Killing a patient is legal if the patient is comatose and the killing involves turning off life support. It's not legal if a fully conscious patient asks to be killed.

A further wrinkle: The courts have previously found that there is a duty of care to administer life support to a patient undergoing cardiac arrest or some such. So: The doctor is required to give life support initially, as the patient enters a comatose state, but they no longer have the duty afterwards. The strain gets tougher if you look at things another way: Turning on the life support for the patient enterring a coma is an action, but one the court requires. Turning it off is also, arguably, an action; you have to pull the plug. But the courts have decided this is really an Inaction.

I think, and feel free to dispute me on this, that if you step back from the Common Law context this makes no sense. Is there a moral distinction between killing an unconscious person by turning off life support and killing a conscious and consenting person with an injection? I feel like there isn't, or that if there is there's not a stark enough difference to say that one should be legal and the other should be illegal. The only reason we have the distinction is because the courts decided that one case was most analagous to previously decided set of cases A, while the other case was most similar to previously decided set of cases B.

I'd be interested if anyone feels otherwise. Is there a meaningful distinction between the two situations outside of a legal context? Is there a good reason we should treat the two cases differently?

Offensive Boredom

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Of course, relating to that last post, the one perk of having a job others find boring is that it's a good way to cut short unwanted conversation. A few years ago I volunteered to work at my sister's Grad Night, which involved being locked in a gym with about 800 graduating High School seniors for a night. And, in my case, being forced to share a ticket redemption table for 9 hours with an evangelical Christian mom. After humoring her for an hour, smiling and nodding along to her discussions of Christ's love and all the sinful jeans the girls were wearing nowadays, I decided to put a stop to it.

"In many ways," I said, "That reminds me of my job at the library. Let me tell you about the 1981 India Census. About a year ago we got this call from this public interest organization in Connecticut. You might have thought they'd be affiliated with Yale, but they weren't. They were in Hartford, but Yale is in New Haven. Did you know that New Haven used to be a colony on its own, seperate from Connecticut? But they merged before the Revolution, so that's why there's only one state of Connecticut. But my point is this: These people are making these microfilms, see? Of important public documents? And I suppose they thought somebody would want a microfilm of the 1981 India Census. Why anyone would want that is beyond me. But I suppose some statisticians or demographers might find it useful. Still, though, it seems like there ought to be executive summaries that'd be just as good. In any case, they needed a copy of this census, so that they could make a microfilm of it. Well, they looked around and apparently our library at Berkeley has the most complete set of the 1981 India census in the country. So they made a deal where we'd ship them the census, and they would microfilm it, and then ship it back to us. And eventually the job fell to me to handle this whole mess. Well, shipping that census out was no walk in the park, let me tell you. The first thing that needed to be done was that the books had to get put in their proper order. Now, the library of congress call number system..."

And so on for about twenty minutes. By the time I finished that one story she looked anxious and slightly mortified. "Oh," she said, "That's interesting."

"Well, if you think that was interesting, wait'll I tell you about six months later when the same people requested the 1991 India census!"

"Um, maybe you could tell me later. I've got this book I'm reading for my book club and I wanted to make some progress tonight..."

"A book, eh? I wonder what the Library of Congress call number would be..."

"No need! Let's just sit silently and read."


And I think we shared about 10 words the rest of the evening.

Ready for interview....

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At least so far as dress is concerned. As far as mental state, I still have a ways to go. Good thing the interview's not for 3 hours.

Too Tired for a Serious Post


If you were a pair of lucky underpants, what color/pattern would you be? Quickly, before I dress for my interview!

Good News/Bad News

A: I bought a new suit on Monday.

B: That's good!

A: I went $200 over-budget on it.

B: That's bad!

A: I also bought a new t-shirt and underpants at American Apparel on Monday.

B: That's good!

A: And froze my ass off getting them after wandering back and forth on Houston for an hour.

B: That's bad!

A: I got in to see a public interest advisor about my resume on Wednesday.

B: That's good!

A: He said the resume can be polished, but the lack of diversity of experience means that it's unlikely it'll get me any interviews.

B: That's bad!

A: I had a practice interview for criminal prosecution-type jobs on Wednesday.

B: That's good!

A: The interviewer told me I sounded like a vigilante who would burn himself out in a couple of years.

B: That's bad!

A: Thanks to a last-minute cancellation, I got an interview with the Manhattan District Attorney's office on Monday for a position with their Summer Internship program.

B: That's good!

A: They'll be working off my terrible, unpolished resume. They want transcripts, which will be incomplete, they want a list of references, whom I haven't notified and can't get in touch with, and they'll want me to show up in a suit, which is still at the department store being tailored. I called today and maybe, if I'm very lucky, I can call tomorrow and convince the head tailor to grossly overcharge me for a rush job, which I will have to either A. pick up tomorrow in the hour gap I have between my last class and the start of Courtroom Advocacy Project training or B. pick up Monday sometime after I see my psychiatrist at 10:00 but before my interview at 12:30. And I'm not sure I could do it either way if the subways break down the way they did today.

B: ... Are you done?

A: Yeah.

B: Stop bitching. You have a shot at your dream internship (That ACTUALLY PAYS. Do you know how rare that is for government/Public Interest 1L summer jobs?) and you're complaining about an incomplete transcript and picking up a suit? Starving children in China would love to be able to eat the suit you're bitching about, or words to that effect. In short: Stop complaining and start feeling guilty about having complained.

A: ... I'm Sorry.

B: That's good! Got anything else?

A: Um.... I finally saw Eraserhead...

B: That's bad!

The Letter of the Law

Just a quick point that seems somewhat relevant to popular constitutional understanding. It is often stated that judges are too quick to ascribe activist readings of the constitution, finding rights and such that can't be found anywhere in the words of the document.

The trouble is that this is by no means a new thing, and there are massive bundles of rights that almost everyone believes exist, and the Supreme Court agrees, that aren't there in the text. An example came out in criminal law today.

In ancient Greek law, it was entirely acceptable to punish a family member for someone's crime, if the criminal wasn't available. There was a sense that crime was a stain on society that needed to be washed out, so someone must be punished, even if it wasn't technically the person who committed the crime.

Our modern, liberal (in the 19th Century utilitarian sense) of individual freedom and personal responsibility is that people shouldn't be held responsible for the acts of others. Therefore, the criminal law requires culpability. You have to have committed a crime and be blameworthy in order to be convicted and punished.

So suppose a cop decided that he has a really good case that Johnny Scumbag committed murder. It's open-and-shut. But he can't find him. So he arrests his half-brother, Jimmy Scumbag, who has a spotless record. The judge decides, after weighing the evidence, that it's important to teach a lesson to hoods and thugs everywhere: If you commit a crime, you put your family and friends at risk of punishment. So he instructs the jury to punish Jimmy if they find that the evidence shows that Johnny commited murder. The jury convicts him.

This conviction would be overturned before the judge got back from lunch. The reasoning would come from the Fifth Amendment, which states in relevant portions that "no person shall ... be deprived of life, liberty, or property, without due process of law." But that doesn't come close to saying that Jimmy can't be convicted for Johnny's crime; according to a very strict reading of the rules, the Due Process clause there seems to only say that the proper procedure be followed. Assuming Jimmy went through all the steps, it seems on a strict reading that there's nothing wrong.

But the courts have found the phrase "Due Process of Law" to be highly loaded. It incorporates a massive number of rights that are considered to be a major part of the American judicial system, that are there because they were part of the unarticulated rights all accused parties had at the founding. You need culpability to be convicted, among other things.

Alternatively, an appeal could be founded in the Eighth Amendment, forbidding cruel and unusual punishment. This would rest on the argument that any punishment is cruel and unusual if it's for a crime you didn't commit.

This is all to say that there's a lot of stuff implied in the Constitution that we nonetheless recognize as rights. It is, to use the unfortunate and anachronistic phrase employed by my Law and Philosophy professor, a Lesbian Law (A term favored by Aristotle, referring to a type of flexible ruler used in contruction that was developed on the island of Lesbos).

I do not mean, in saying this, to imply anything with respect to certain rights supposedly in the Constitution. I'm not saying, here at least, that the Constitution guarantees a right to abortion or contraception or any other controversial rights. Nor am I arguing for or against certain schemes of Constitutional interpretation that are inclined to treat it as a living document, to be re-interpreted as society changes. I'm merely saying that there's more there than just the words.

I should also point out that this is fairly uncontroversial among legal scholars and the judiciary; even a hard-core Constitutional originalist like Scalia agrees that there's more to the Constitution than its literal reading. The point of this is simply to argue against a certain form of lay argument that says, for instance, that the First Amendment doesn't really protect freedom of religion, because all it says is that congress shall not establish a state religion. Constitutional interpretation requires a broader toolset than simple reading comprehension.

You Be the Judge: Unconscious Murder


I am once again changing the names with this one, because it involves a person of some fame and it may prejudice the case if you know who the parties involved are. In any case:

A young African-American male is driving a car and is stopped by a policeman. The african-american is beligerent and insists that he did nothing wrong. The policeman attempts to arrest him. He resists. A struggle ensues. In the course of the struggle, the policeman pulls a gun and shoots the african-american man in the abdomen. The african-american man clutches his stomach, falls backwards, but then recovers. He lunges at the policeman and seizes the gun. Two shots are fired, and the policeman is killed. The african-american man limps away and eventually makes it to a hospital, where he is arrested for murder.

The events above are not in dispute. It is also known that the african-american man was unarmed until he seized the gun from the policeman.

At trial, the african-american man claims to have had no recollection of shooting the policeman. He recalls the struggle up until he was shot. He remembers an intense pain in the stomach, and the world going hazy, then black. He recalls hearing two gunshots, but can't recall seeing anything. Everything else is a haze until several days later when he found himself in a bed at the hospital.

Several doctors testified at trial that these symptoms are consistent with a loss of consciousness brought on by severe physical trauma, of a sort known to have occured in the past when people have been shot in the abdomen. When subjected to such trauma in a situation of danger, it is explained, the conscious mind shuts off and reverts to a reptilian fight-or-flight mode. People have been known to remain active while in this unconscious state for as long as half an hour, a long enough time frame to encompass the defendant's actions.

After hearing the evidence, the trial judged decided it was immaterial. If the defendant was found to have fired at the policeman, he was guilty of murder regardless of whether he was conscious or not. He instructed the jury to ignore all evidence relating to the defendant's lack of consciousness, and instead determine simply whether he fired at the policeman. The jury so found, and the defendant was found guilty of murder. He appealed.

The case now comes before your appellate court. The question is whether the defendant's unconscious state would be an excuse.

Note that the appeal is on the matter of improprer jury instructions; the trial judge instructed the jury to ignore everything related to the defendant's consciousness, on grounds that even if he was unconscious he would still be just as guilty. You are to decide whether the judge was correct in this decision. If you decide that he was, the conviction will be upheld. If you decide that he was not, the case will be sent back for a new trial that will consider the defendant's mental state, and a jury will determine whether he was conscious or not. For purposes of this appeal, it doesn't matter if you believe or disbelieve the defendant's claims. You must assume that they are true, and then ask yourself whether lack of consiousness would be grounds for acquittal.



On friday at a mock interview thing for Public Interest summer jobs, I was told in no uncertain terms that I needed a suit for interviewing. Even though it's just a summer internship for the first year, and even though these are public interest groups.

This means I will have to go out and buy a suit. I need a suit that meets all of the following criteria:

1. Fits my budget (I'm shooting for $300, but I can go somewhat higher or lower).

2. Is suited for wearing in winter and summer. That is, I'm buying this suit for interviews in the winter, but can't really afford another one for summer or next fall's interview season. Because I am heat-averse and cold-loving, and because I will be wearing the suit less in the winter than I will in warmer times, I am willing to sacrifice insulation now for comfort later.

3. Doesn't look embarassing (This is really all I can hope for shopping for myself, I've decided. I have no sense of fashion and can't tell you how many articles of clothing I've bought that looked fine at the stores and I now refuse to wear except on laundry day).

I have absolutely no idea what to look for in a suit. I was told by both parents not to buy a trendy suit; go for something conservative that'll stay acceptable for a while. This is fine advice, except I have no clue what trendy is in suits. It's snowing today, so I think I'll go downtown tomorrow and do this. Does anyone have any general advice about suit buying? What should I look for? What should I avoid? How do I test the suit in the shop so that I know it'll look good on me? Any help would be greatly appreciated.



According to this site, which uses computer facial recognition software to examine your scanned photo and determine which celebrities you most resemble, I look like:

Peter Greenaway (I'm not that craggy!)
John Edwards (Vaguely closeish; similar haircuts, at least)
Agnetha Falkskog (The blonde singer in ABBA)
Ariel Sharon (!)
Mia Farrow (?)
Tom Cruise (Flattering, but no)
Bryan Adams (Who?)
Henry James (The turn-of-the-century author)
Keira Knightley (Huh.)
And Annette Benning

So I not only resemble a bunch of celebrities, I resemble a bunch of celebrities who look nothing like one another.

A Song of Ice and Fire: A Critical Reading

While I patiently wait for certain parties who shall remain unnamed to finish their review of A Game of Thrones, I thought I'd throw out some thoughts about the book that have been bouncing around my head for a while.

First, let me say that the series is not done, so some of this is speculation. Further, I have only read the first two books out of four published, so it may be the case that some of my speculation is already invalid (or has come to fruition). Also, this discussion has some very light spoilers, insofar as I talk about non-plot twist events in the second book.

For much of the second book I disliked Catherine Stark. She spends a good part of the novel ensconced at Riverrun, and her principle activity there is worrying. She awakes in the morning, worries about nine impossible things before breakfast, takes her meal, worries about the war, eats lunch, worries about her children, watches for ravens that might bear fresh news to worry about, has dinner, worries about her father's health, then it's off to bed for a good night's sleep in anticipation of another long day's worry.

Most of her worrying revolves around the war. Why, she asks, can't we just stop fighting? Wouldn't that be better for everyone? You read it and want to throttle her. "Good lord! Can't you see that your hippie peacenik ways will only lead to death and destruction? Can't you see that sometimes things are worth fighting and dieing for, and your children have chosen this path for themselves? Get ahold of yourself!"

But here's the trouble: Fundamentally, she's right. The game of thrones is, in the end, just a game. A violent and destructive game, but a game nonetheless. It doesn't matter one whit who sits on the Iron Throne to most of the populace, and it probably won't matter too much for the nobility, either.

I feel this gets thrown into sharp relief by the lack of standard magic/quest fantasy tropes. There's no hideous warlock bent on world destruction, no sinister Other that the band of heroes is questing against. (That's not to say there aren't Others, but almost nobody's paying attention to them; they're too busy playing with swords). When a story features heroic protagonists pitted against an evil force that seeks to destroy the world, you can easily suspend your disbelief about the brutally oppressive nature of the Medieval polity.

But Martin's world is much closer to the real world than it is to Middle Earth, and as such it's harder to ignore the fact that you have a political system based on a small caste of gangsters exploiting the 95% of the population that's weaker than them. We can sort of accept that Eddard is relatively benevolent as gangsters go (Maybe. He's loved by the castle folk, and he's loved by his vassals, who are all members of the Gangster Caste). But do the Smallfolk, as they are called, really experience a better life if they toil on Stark lands than if they work under Lannister's banner? I have my doubts.

A point that comes up several times: The Smallfolk don't particularly care who the king is, and on the occasions they do care, they wish the Targaryens were back on the throne. This is important: The inbred and evil Targaryens were vicious to their gangster underlings, but treated the bottom 95% of the country about the same as anyone else did. The only difference between life under the Targaryens and life under the Baratheons is that there was a hell of a lot less war while the Targaryens ruled. But just because the Smallfolk don't care who rules doesn't mean they won't have to die over the question.

The argument that some of the nobles are good rulers who truly care about their people is undermined by the fact that nobody demonstrates effective rulership. Leave aside the gathering army on the Eastern Continent; the Westeros can't be expected to know about that. Leave aside also the wildling hordes and the Others; the North hasn't been a problem in years, and while a good ruler might take note of the disturbing reports by now, it's hardly a count against them to lack that sort of prescience. But the one thing that everyone knows damn well is that Winter is coming. Further, it having been a long Summer, it can be expected to be the longest Winter in history, 15, 20, 30 years. And how do the lords of Westeros collectively respond to this calamitous and inevitable natural disaster? By sowing more crops while they can and storing extra food to wait out the cold? Of course not. They take all the able-bodied men they can muster, march them to the middle of the continent, and set them about hacking one another to pieces. And while they're at it, they burn the most fertile fields on the continent to prevent their enemies from getting easy supplies. This, I would argue, is not a wise course of action.

The best course for the Starks would be to give in, accept the current King, and start sacking away for the coming famine. If they really feel it necessary, they can nurse a grudge and enact their vendetta when the time is right and their imminent destruction isn't at hand. Cruel as most of the Lannisters are, it seems unlikely they would seek to wipe out the Stark family out of spite. Of course, everyone calling it quits and enacting sound and rational agricultural policy wouldn't make for a very interesting novel.

I wonder if Martin agrees with me. The elements are certainly there, and we know that something's going to happen eventually with the Wildlings, the Others, and Daenerys Targaryen. Eventually he's going to give the Lords of Westeros a collective whack on the head and tell them to stop playing around and deal with the real problems they face. I hope he also throws some cold water on the medieval nostalgia that his book plays into so well(and that, to be fair, I absolutely love when I'm not wearing my Critical Studies cap). Remember: if you lived in the Middle Ages, the overwhelming probability is that you would live out your life poor, weak, and uneducated. You would live in fear of the local nobility until you perished as a toy soldier in someone's game of war, or were slaughtered by troops (probably from the very noble sworn to protect you) as they passed through your land on the way to battle.

Still, we care about who the author tells us to care about, and Martin wants us to care about the game of thrones (or perhaps he's waiting to drop the sword on our heads and scold us for misplaced priorities; I can only hope). In the end, though, caring deeply about whether the Starks or Lannisters prevail is like caring about whether the noble Bechtels or the sinister Halliburtons get the over-inflated government construction contract: At the end of the day, they're all a bunch of crooks.

Don't Bother Judging

I would frame this as a "you be the judge" thing, but the set-up isn't nearly so interesting as the result. So here goes:

Building Encroachment is a big deal in property law. Building Encroachment occurs when you build a structure on your property and part of it crosses into your neighbor's property. This is a bad thing, since it violates their right to the property. It was therefore necessary for the courts to develope a remedy for the problem. For a long time, their remedy was the absolute stupidest solution you could imagine to the problem.

We are introduced to the problem of Building Encroachment in the case of Pile v. Pedrick, arising in the late Nineteenth Century. Pile and Pedrick owned adjacent lots. Pile lived in a house on his lot. Pedrick had an empty lot on which he built a factory, extending to the property line. Pile discovered that the foundation of the wall on the property line contained small feet for support at the base. These feet were located seven feet below ground. A careful survey determined that the feet extended 1 3/8 inches over the line into Pile's property. Pile sued for trespass.

Nineteenth Century jurisprudence was of a highly formalistic character. That is, it was very concerned with making sure that laws and precedents were followed to the letter, with a minimum of higher order thinking. Concerns of justice should be excluded, if at all possible; Justice has no place in the court room. The reasoning of courts in building encroachment cases was that an encroachment is like a sustained trespass. The remedy for a trespass is an injunction forcing the trespass to end. Therefore, the court in this case issued an injunction ordering Pedrick to remove the offending feet. Pedrick offered to send workmen to Pile's property to dig down and chip off the feet, ending the trespass. Pile refused; the only acceptable solution was to tear the whole wall down, and the factory along with it. The court decided that this reasoning was very sound and sensible, and ordered Pedrick to demolish his factory immediately, so that this grave and unconscionable offense against Pile's inalienable property rights would be ceased as soon as possible.

While some courts still adhere to this line of reasoning, most courts today just award damages to the encroached upon party, effecting a land transfer at the going rate for the land encroached upon, assuming the encroachment was in good faith.

The big point, here, is that Anglo-American law takes property rights very, very seriously. Freedom of speech, eh. Freedom of religion, so long as it doesn't annoy anyone. But once you mess with somebody else's right to property, you are entering a world of pain. You are now a sinner in the hands of an angry God, so far as the law is concerned, and no punishment is too harsh for a degenerate such as you.

Historical Inquiry


I've got a question that I should probably research, but I'd be interested in an answer. Why were Americans so afraid of paper money two hundred years ago? Obviously paper money is popular now (c.f. the repeated failure of the dollar coin) but they really distrusted it in the period around the founding. I was reminded of this question because I was reading the Federalist Papers for Constitutional Law and Madison, in one of them, argues for the importance of curbs on the popular will. Among the specific popular (and evil) causes that Madison argues need to be prevented are "the repudiation of debt, the equal division of property, and the printing of paper money." So bankruptcy laws, International Communism, and the Federal Reserve.

So what gives? Concerns about hyper-inflation? Concerns about regular inflation? A feeling that paper money wasn't real money? Distrust of the printing industry? Campaign contributions from America's Mining and Metallurgy firms? (Interesting side-note: Benjamin Franklin was an early and strong advocate for paper money. When the government eventually decided to print paper money, they gave the contract to mint the money to Benjamin Franklin. So the American tradition of kickbacks for lobbyists goes back to the days of powdered wigs)

Also, can you imagine if they'd written a ban on paper money into the constitution? You'd have to pay with change every time you went to the store! In fact, we probably wouldn't have a concept of change, since all money would be coins, except in relation to those weird foreigners, with their squirrelly paper money.

You Be the Judge!


I read an interesting case for property tonight, and thought I'd share it. Read the set up and tell me how you would decide the case, if you were the judge. This is a pure reasoning exercise. I'm not interested in the right answer with respect to the American legal system; given this case, what would your decision be, and what rules would you lay down to handle future situations like this? (Legal sticklers, note: I changed the names and the fact situation slightly. The changes aren't material, they just make it easier to convey the situation)

Defendant, Delta International, owned a set of 8 lots. They were approached by Mr. Pikopolous, a wealthy financier who wanted to purchase one of the lots to build his dream home on. Delta accepted, and the deed was transferred. Mr. Pikopolous then became quite busy with his job and put off work on his new home for the foreseeable future.

Delta International, unfortunately, kept poor records. About a month later they commenced construction of houses on the 8 lots. Nobody had amended their construction plans to remove from them the lot that had been sold to Mr. Pikopolous. Consequently, when Mr. Pikopolous returned to his plans to build his dream home he found a new house on his property.

Mr. Pikopolous and Delta International entered negotiations over what to do. Mr. Pikopolous was understandably upset because the house Delta had built was completely unlike the one he wanted for his dream home. He was generally unwilling to negotiate with Delta International. Eventually, the president of Delta International snapped and ordered a crew to demolish the house. They left a large mess on the lot. Mr. Pikopolous sued.

A jury has made the following determinations: First, Delta International acted in good faith in building the house. They honestly believed that they owned the property, and did nothing blameworthy in constructing the house. Second, the content of the negotiations is fuzzy; Pikopolous alleges that Delta tried to intimidate him into a settlement; Delta alleges that Pikopolous was trying to extort an unreasonable deal from them using pity. Third, Delta acted maliciously when they demolished the house. On the basis of these findings, the jury has found that Delta is liable to Pikopolous, and must pay him damages.

The cost of cleaning up the mess they left and restoring the lot to its pre-construction condition is estimated at $10,000. The value of the house that Delta destroyed is estimated at $1,000,000.

The question for you to answer: Should Delta be required to pay Pikopolous $10,000 or $1,000,000? To frame it more clearly: Is Delta's obligation merely to restore the land to the state it was in prior to any interference? Or, once constructed on his land, did the house properly belong to Pikopolous, and was Delta's destruction of it an act of trespass and destruction?



Back in New York again. So tired; haven't gotten a night's sleep since Friday. Anyhow, school starts again tomorrow. On the docket this semester: Constitutional Law, Criminal Law, Law and Philosophy, and Property. Value-added piece of information for non-lawyer-types: Property, here, doesn't really refer to physical stuff. I mean, that's sort of covered, but not really. About 90% of this property course is Land Use/Real Estate Law. Wheeeeeee.

Oh, also this semester: Moot Court. Not Mute Court, sadly.

Susan Faludi Goes to the Movies


I've been reading Susan Faludi's Backlash.  I had been planning to wait until I finished it to write a review, but I just read her chapter on movies and had so many thoughts on it that I felt I should do a mini-review now before I forgot everything.

Let me start by saying that I've enjoyed the book thus far.  There are a few points I disagree with, and some assertions about which I'm skeptical, but overall I've found her argument compelling.  Faludia wrote Backlash in 1991, and her argument is that attitudes towards Feminism in the US undergo a cycle of progress and backlash.  There was the suffrage movement in the late Nineteenth/early Twentieth Centuries, leading to universal suffrage in 1919, followed by a backlash in the 1930s.  There was the advance for women in the workplace during World War II, followed by the return to the home and Nuclear Family in the 50s.  There was the advance of equal rights and career-oriented women in the 70s, followed by a backlash against working women in the 80s.  Most of the book is focused on analyzing the 80s backlash and contrasting it with societal trends in the 70s.

I'm largely in agreement with Faludi's views, but I feel she makes some spurious arguments when she gets to her chapter on the films of the 80s.  Faludi spends most of the chapter discussing Fatal Attraction, then turns her attention to broader trends in 80s films.  The Fatal Attraction analysis is convincing; the trend analysis is not.

Faludi marshalls powerful evidence that Fatal Attraction is not only a de facto anti-feminist film, but that it was consciously intended to send an anti-feminist message.  The story was written with a somewhat feminist message in mind.  A man sees his wife and family off for the weekend.  He then opens his little black book, calls a woman up, and has an affair with her.  The woman is devastated to discover that he's married and has used her.  She ends up trying to kill herself, the man's wife finds out, and he the rest of the movie explores the fallout of his thoughtless behavior.  The message the author was trying to convey was that there are serious consequences when men treat women like objects rather than respecting them as human beings. 

The story was bought by a producer with the intention of turning it into a feminist film.  The movie was then bought by Paramount and the original producer was pushed out for a new one.  The movie was given to Adrian Lyne to direct, and the first thing he did was to rewrite the script.  The male character needed to be more sympathetic, or the audience wouldn't care what happened to him.  The story went from thoughtless-man-sleeps-with-woman-and-she-tries-to-kill-herself to thoughtless-man-sleeps-with-woman-and-then-she-does-crazy-things-to-him-and-tries-to-kill-herself.  Not sympathetic enough.  So they changed it so that the woman seduced him, forced him to sleep with her, then torments him.  Still not enough.  Alright, now the woman's been driven psychotic by her career-orientation; she snares him with sex, then stalks him in the hopes of getting the marriage that her career has prevented her from obtaining.  The wife originally had a career.  Her character was re-written into a doting homemaker.  This was the version that was shot.  In the original ending, though, Glenn Close kills herself in the end while music from Madame Butterfly plays in the background.  Now she's too sympathetic.  The studios made them re-shoot the ending, so we get the new one where Michael Douglas starts to kill her, then Anne Archer finishes her off. 

Faludi also provides some fairly damning quotes from the director.  Glenn Close was driven crazy by her career, and while not all career women go as far as her, it is clear, according to Adrian Line, that they're crazy to some degree.  A woman's place is in the home.

So Faludi makes a sturdy argument that Fatal Attraction is anti-feminist.  Further, it's a pretty relevant target for her book.  Fatal Attraction was one of the top-grossing films of the decade.  It remains well-known and watched to this day. 

Then Faludi moves to broader trends in films.  The first problem with her analysis is that it's all anecdotal.  She picks out movies that fit her model of the bad, anti-feminist 80s film and contrasts them with her hand-picked good, feminist 70s films.  But how trust-worthy is this?  It's very easy to cherry-pick a few examples and then declare a trend (in fact, Faludi decries this very scheme of argumentation when she rebutts trend-journalism articles.  These articles tend to interview a few women who have left careers and then, with no statistical backing, declare that women are abandoning their careers for families in droves).  I'm not saying there wasn't a trend toward more anti-feminism in films in the 80s, but I'd like to see some statistical evidence compiled.  Perhaps someone could classify films as Feminist, Anti-Feminist, or Neutral and compare the numbers in each category over the years.

The thing is, though, based on the rest of her film analysis, I don't trust Susan Faludi to make those classifications.  She starts by discussing films which present the fairly overt message that women aren't fulfilled unless they're married and have children, such as Surrender and Baby Boom.  That's not too bad.  She gets overzealous, though, in declaring other films to be anti-feminist.  Any movie that shows a woman getting married and being happy about it is anti-feminist.  Any movie depicting babies and implying that they may be a source of happiness for a woman is anti-feminist. 

I see where she's coming from, but I feel she goes to far.  Her point is that these movies reinforce traditional notions of female life goals; women need to be married to be happy, women need to have babies to be happy.  I see her point, but I don't agree with it.  My problem is that people in real life get married and decide to have babies.  If you mandate that a film is anti-feminist if it depicts marriage or parenthood in a positive light, you've erected a pretty formidable barrier for the feminist film-maker who wants to appeal to any kind of mass audience.  It seems as though the solution to films which depict traditional lifestyles in a positive light is not to shun all films that do so; it's to create films that depict non-traditional lifestyles in a positive light. 

Faludi at least has a point with those films, but one I disagree with.  There are a lot of movies she condemns, though, that really stretch her credibility.  Any movie that fails to present a strong female character exemplifying feminist virtues is anti-feminist.  According to Faludi, Indiana Jones and the Last Crusade is anti-feminist.  Big is anti-feminist.  Field of Dreams is anti-feminist.  Star Trek V is anti-feminist.  The was one part of the chapter where I laughed out loud.  Half-way through, Faludi declares that Aliens is anti-feminist.  Even though Ellen Ripley kicks ass, Faludi argues, she does it, in part, to save a child.  The child calls Ripley "Mommy."  Thus, Aliens sends the message that women can only kick ass as part of their protective-maternal instincts.  Now I see Aliens in a whole new light.  Clearly, had Newt not been involved, Ripley would have rolled over and been eaten in the first alien attack.  After all, Ripley was dainty as a doiley until she discovered there was a child to protect.  Only then did she go into ass-kicking mode.  There are dozens of reasons not to like Aliens.  Anti-feminism isn't one of them.

It would be unfair to read too much into the Aliens condemnation.  It's clear that Faludi isn't really serious about that.  She's dismissing a counter-example by finding a stretched reading that makes it fit into her broader trend.  Still, though, Faludi watches films in a very odd way. She interprets them as making very strong implications about what they depict.  If Ripley kicks ass to save a child, then Aliens is implying that women can only kick ass if it's to save a child.  If a movie shows a woman happily married, it implies that women can only be happy if married.  If Indiana Jones and the Last Crusade has no strong female characters, it implies that there's no such thing as a strong woman.  And so on. 

Its annoying, because there are some good arguments in the chapter, but by the time you finish it it's a lot harder to take Faludi seriously thanks to the sheer number of films she takes offense at.  I would still cautiously recommend the book, but the movie chapter has shaken my faith.  Faludi tries to over-prove her point and winds up tarnishing her good arguments.

Columbia Spam

Columbia Law endeavors to teach its students the lesson that technology is a scary thing, not to be trusted.  They do this by making our every encounter with technology as painful as possible.  The computer labs have two printers, one of which is always broken, to service forty computers.  The secondary computer lab has one printer for the same number of computers, and as an added bonus doesn't have a stapler.  Because why would someone printing something need a stapler?  Configuring your laptop to work on Columbia Law's wireless internet requires a big fifty-page manual that is so anal-retentive that it requires you to change your desktop theme to Classic (so you won't be confused when the shape of the windows in the the pictures in the manual are different than the ones on your computer).  Law School tech services requires all students to run Windows XP Professional (NOT Home Edition), which means almost every incoming student has to spend $100+ on an upgrade.  The only reason for the requirement is that XP Pro is mildly safer than Home edition, so tech services decided that students should pay for their liability insurance.  It should be noted that no other law school, to my knowledge, mandates Pro, nor does any other branch of Columbia University. 

And then there's e-mail.  Everyone gets a Columbia e-mail address which is used for all official correspondence.  You don't get to pick your address; it's assigned by a computer.  It's your initials followed by a four-digit number, so in my case zas2101@columbia.edu.  These addresses are 1. annoying to tell people, which is why I still give people my gmail account, and 2. eminently spammable.  Every person at Columbia has an e-mail address consisting of [letter][letter][letter][#][#][#][#]@columbia.edu.  That means there are a relatively small, finite number of possible Columbia e-mail addresses.  Which means enterprising spammers can, in seconds, generate a list of every possible Columbia e-mail address. 

Further: The e-mail server they use is awkward.  To get the full functionality (that is, the ability to delete e-mails) you need to either tel-net in and use PINE or use their awkward web interface, CubMail.  Deleting e-mails in CubMail is a three step process: You have to delete the e-mail, then confirm you want to delete it.  This causes it to be stricken through.  Only when you choose the "expunge deleted" option are your deleted e-mails actually deleted.  Further, you can only view twenty e-mails to the page, and since deleting is such an ordeal you tend to get a lot of build-up.  At one point I had over 600 garbage e-mails, each waiting to be hand-deleted by the three-step process. 

The problem is exarcerbated by the 20 megabyte space limit on e-mail accounts.  After 20 megabytes the servers just delete any further incoming mail without telling you.  20 megabytes gets used up fast when professors are sending Word documents and Student Services is sending PDFs.

20 megabytes also gets used up fast when you're buried under a steaming pile of spam.  And not just any spam: Law School spam.  The Law School sends us all sorts of e-mails, from the registrar, from student services, from student events, from the President, from tech services, from the Center for Public Interest, from Career Services, etc.  And then there are the student groups.  You know how in undergrad you signed up for a few student groups that you had a vague interest in, but never followed through with?  You're probably still on their e-mail list to this day, getting notifications about protests occuring on campuses you haven't visited in years.  Columbia Law student groups send out those same event notification e-mails, and to avoid the possibility that a student won't learn about an event they're interested in, Columbia Law thoughtfully subscribes you to the e-mail list of every group in the school.  What's more, you cannot unsubscribe from this list: the e-mails are routed through Student Services (which also tells you things like when class registration starts, so you can't just block their e-mails).  So Columbia Law gives you a tiny mailbox that is the only place they will send important notifications, makes it really hard to delete e-mails from that mailbox, then spams the crap out of you. 

Tonight I am up until 3 AM cleaning out my mailbox.  While doing so, I discovered the platonic ideal Columbia Spam.  A good Columbia Spam is one that is targeted at some small niche within the law school, yet bafflingly has been sent to all 1200+ Columbia Law students.  This e-mail comes from Peter Strauss, who's a professor at the school.  The subject is: 

"If you like sight-reading vocal music of the Renaissance..."

And what good law student doesn't?

A Stupid Little Grammar Oddity

The general convention in fiction is to write in the past tense, e.g. "John walked into a bar."  But the convention in literary criticism when writing about the action in a piece of fiction is to write in the present tense, e.g. "Midway through the novel, John walks into a bar." 

I suppose this makes sense; from the perspective of the narrator of a piece of fiction, the action has already happened and the narrator is describing it retrospectively.  But for the literary critic, it seems as though the action happens as you read it.  Although by the time the critic writes, it's already happened, so perhaps it should be past tense.  And from the perspective of the reader, the action of the book hasn't happened yet.  A literary critic could, in defiance of all laws of grammar, write his descriptions in the future tense: "If you read this book, midway through John will walk into a bar."  But that's just silly. 

What's more silly, though, is the convention in historical writing.  In history writing, everything is in the past tense, no matter what.  This leads to some awkward and imprecise phrases.  For example, suppose you wanted to summarize Oliver Wendell Holmes's Memorial Day Address.  The convention in literary criticism would be to write:

"In his Memorial Day Address, Holmes argues that war is a force that gives life meaning."

This seems somewhat inappropriate, but if you've grown accustomed to reading literary criticism you're used to long-dead authors being drawn into the present tense.  The historian would write the sentence this way:

"In his Memorial Day Address, Holmes argued that war was a force that gave life meaning."

Now Holmes has been put in his proper place in the past, but so, unfortunately, have his sentiments.  Holmes wasn't making a historical argument; he was making a philosophical statement.  He intended to say that war would give life meaning as much in 2006 as it did in 1884.  Moreover, we can't tell, reading the statement, whether Holmes even meant that it gave life meaning in 1884; the sentence can be plausibly read as saying "War once gave life meaning, but it does not any longer."  Unfortunately, this is the proper way to write the sentence in a history paper.  Absolutely everything that isn't a quote goes in the past tense.  I would argue that the best way to write the sentence would be:

"In his Memorial Day Address, Holmes argued that war is a force that gives life meaning."

This puts Holmes in the past, and indicates that Holmes intended no restrictions on his meaning with respect to time.  Still, the sentence feels wrong when said out loud, thanks to the mixing of tenses. 

This is probably why literary critics keep things in the present tense.  It sounds better and avoids at least some confusion.  And eventually you stop noticing how odd it is to read about ancient Greek authors writing in the present tense. 

Educated Burgers


Last Spring I travelled up the East Coast visiting law schools.  Toward the end of my trip I found myself in New Haven, Connecticut.   I wasn't visiting Yale Law; I hadn't even applied there.  A friend of mine was attending grad school at Yale, and I had planned on dropping in for a visit.  Fortuitously, my plans called for me to be in New Haven on April 4th, which was her birthday.  Less fortuitously, I decided to make my visit a surprise.  I made the plans months in advance, but a creeping doubt eventualy caused me to e-mail her and tell her of my visit a few days before I left.  I found out while on the road that she would be out of town for her birthday.  Nuts.

I had to wake up early that day to make my train.  I fought through rush-hour subway crowds while carrying too much luggage to get to Penn Station, but I got there on time.  I arrived in New Haven, tired and disheveled, around eleven.  I had nothing to do for thirteen hours.  I took my friend's present out of my bag and walked to the Yale campus.

A walk around the school killed about forty-five minutes.  I wandered into the stores near campus and eventually bought a Yale pennant for my sister's collection.  Still about eleven hours to kill.  I decided to stalk my friend at the graduate housing castle.  I would look around and get a feel for where she lived, where she worked, etc.  If she couldn't be there to show me around, I'd give myself the self-guided tour.

A lot of the doors were locked, but there was enough foot traffic to nonchalantly penetrate the building.  I eventually found my way onto an elevator leading to the graduate residences.  A female student joined me.

"What floor?" she asked.

"It doesn't matter," I replied, having unconsciously chosen the creepiest possible response to the query.

I decided to redirect my travels to places I wasn't locked out of.  I eventually found my friend's box in the history department and scrawled a note to her on a flyer.  As I left the castle I realized that I wasn't carrying the penant I had bought for my sister; I ran back to the history department, but someone had already taken it.  Drat.  I went back to the campus store and bought another one.

I was physically exhausted from travel and mentally exhausted from my early wake up.  I was in New Haven, Connecticut.  The most exciting thing I could do in New Haven was leave, and I couldn't do that for ten hours.  My friend's present was too big to fit in her box, so I'd have to mail it to her.  Since she had a P.O. box, this meant paying the full shipping price for the post office to put the package under their counter and stick a slip in her box telling her that the package was behind the counter.  I was shipping her present three feet.  I'd just wasted money on a second penant thanks to my absent-mindedness.  And on top of everything else, I was thirsty. 

I walked into a small fast food place, "The Educated Burger."  As often happens, what started as a narrow and precise mission to get a soda expanded into a full lunch campaign.  I ordered a hamburger, fries, and a large soda.  While they cooked my food, I walked to the nearest booth and set the present down.  It took up most of the table (it was a somewhat large book), but there wasn't a larger table available.  I headed back to the counter to collect my tray.  I noticed that the counter worker hadn't put a lid on my soda.  I looked around for one, but there weren't any out.  Huh.  I'd have to be careful.

I walked gingerly to my table and tried to set my tray down.  The present was too big; there was no room for the tray.  I tried to set the tray down on the exposed table and carefully nudge the present backwards, so as to create room.  I executed my plan poorly.  The soda toppled, spilling sticky sludge onto my present and the floor.


No sooner had I said it than my mind was instantly taken off the sweet liquid that was oozing into the pages of my friend's present and gunking up the floor.  I looked around at the faces of the patrons and staff, which were now all turned to me.  My eyes were drawn to the pair of retirees at the next booth, who were staring at me in the way they would stare at a man accused of murdering their children.  "I'm sorry!" I wanted to say.  "I don't usually swear in public!  It's just I'm so tired and angry at myself and annoyed and bored and all I wanted was a soda and now it's gone AND it's ruining my friend's present and it all came to a head and I wasn't thinking and oh God I'm so sorry!"  But I just kept my head down, grabbed a handful of napkins from the counter, and began mopping up my mess. 

I don't remember how the hamburger tasted.  Probably alright.  But as I was sitting there trying to eat it with what remained of my dignity I decided I could never show my face in The Educated Burger again.  Just to be safe, I'll probably avoid New Haven entirely.  After mailing my friend her soggy present (and receiving a stern lecture from the postal clerk about mailing wet packages), I exiled myself to the station and waited nine hours for my train.

End of an Era


Tonight, while revising my resume to apply for summer internships, I finally deleted the last vestiges of my time at the library as a lowly book-shelver.  Gone at last from the "Relevant Skills" heading is the bullet-point "Speedy and accurate organization of books and files."  For many years I clung to this last bit of my identity as a Shelf Monkey.  Because, damnit, job listings always say they want Detail Oriented applicants, and darned if I didn't have empirical proof of my detail orientation!  But no; now that I've moved on to legal jobs the resume buzzwords have changed.  Now my potential employers want Excellent Research and Writing skills, and my ability to organize books is awkward and extraneous.  But I still feel compelled to include a bullet point saying that I "Could make two trucks in an hour.  Really!  You can time me!"

It should also be pointed out that, despite dozens of submissions of the Speedy and Accurate Organization resume, the only job offer it ever got me was for a position flipping burgers at Nation's Giant Hamburgers.  So Detail Orientation wasn't really working for me to begin with.

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