April 2006 Archives

A thought from the Constitutional Law Review I'm sitting in:

Even though your test is a take-home test, and even though you're free to use any source you like, your books, your notes, third-party outlines, outside research, even fellow students, professors generally frown upon citing to Wikipedia as authority for a doctrine.

Hey, does anyone know a good, free Word Processor? My copy of MS Word is periodically crapping out and corrupting files I'm working on. Nothing major has been lost; I'm just taking notes for myself to take into finals, and if push comes to shove the creating of the documents is more important for my study process than the documents themselves. But: it's annoying to have to reset my computer after every five minutes of work, only to reset and find what I've done has been wiped. Also: I've got some take-home finals and essays to write over the next few weeks, and I don't really trust my Word not to eat something important.

So: Ideas? Something free, Windows XP compatible, and possesses general word processing functionality (tabs, bold, word count. spell check would be nice). It would be astounding if it could also convert directly to .doc format for easy printing, but if not I can copy and paste and hack it around to a Word doc and print from the school's computers. Any suggestions would be greatly appreciated.

Finals of Doom. No time for complete sentences. Will post again no later than ... May 12? May 19, to be safe.

Vegan Thai Coconut Soup

For the recipe, I direct you to Dianna's blog.

(It's finals season, and that means long, boring posts about the subject matter of the classes I have finals in! Today: Constitutional Law, and specifically the Right to Privacy. This post's long and legalistic; it picks up a bit with the paragraph that starts "Moving Along,...", so I'd recommend at least reading from there if you start getting bored.)

Amanda at Pandagon links to this comment published last year in the University of St. Thomas Law Journal. I should point out that this is a comment, not a full-on article. The distinction is that articles in law journals are written and submitted by law professors, while comments are written by law students. Comments are a way for students to get a nice writing sample and build up their resume. So this blog post is just me picking on a fellow student, rather than an actual law professor. Still, I think critiquing the article will be useful. For me, at least.

Shrake starts with a rather grandiose introduction. He likens the Right to Privacy established in Griswold v. Connecticut to the Right to Contract made famous in (though not established by) Lochner v. New York. From there, he argues that, like the Right to Contract, the Right to Privacy should be excised from the Court's jurisprudence. He then claims that by proving Griswold to have been wrongly decided he will have fatally undermined the Right to Privacy.

A little background: Griswold established for the first time a constitutional Right to Privacy. The Right to Privacy is somewhat tricky, as you may have heard, because it's not explicitly articulated in the Constitution. Nonetheless, in Griswold the Court found that a general Right to Privacy existed in the various penumbras to the articulated rights. The holding in Griswold was that married couples had a consitutional right, contained within the Right to Privacy, to make their own reproductive choices. A universal ban on contraceptive pills and devices in Connecticut violated that right, and thus was unconstitutional. The Court later extended this protection to non-married couples, and built on it further in Roe v. Wade when it ruled that categorical bans on abortion were unconstitutional. You don't need to know anything about Lochner except that it is now widely reviled in the legal academy.

Shrake starts with a fairly broad attack on the Right to Privacy, then steps pretty far back from it. He claims that by slaying Griswold he will have done a grievous wound to the Right to Privacy. There are a couple of problems with this. First, it's logically fallacious; Griswold was the first articulation of the Right to Privacy, but it wasn't the last. Overruling Griswold would not, in and of itself, destroy the Right to Privacy, because the right to control one's reproduction is but one aspect of the Right to Privacy. Overruling the first case that articulated a right does not overturn the right in and of itself; it would only do so if the court, in overruling it, renounced its Right to Privacy jurisprudence.

This would be fine if Shrake's argument were against the Right to Privacy itself; if there is no Right to Privacy, Griswold and the other Right to Privacy cases all fall. But he doesn't attack the Right to Privacy. Instead, he acknowledges that the Right exists and that contraception is included among the privacy rights. He then argues within the framework of a fundamental right to contraception that a universal state-wide ban on contraception would nonetheless be constitutional. This is similar to when the government argues that, while the Right to Freedom of Speech exists generally, it is nonetheless justified in restricting it in some particular case. Operating within the rights framework doesn't undermine the right itself, and in fact serves to legitimize the right. Granted, though, the creation of a laundry list of exceptions to a right does tend to undermine that right, and striking down Griswold would be an important psychological blow to the Privacy Right, even if accomplished within a framework that acknowledges the existence of a Right to Privacy.

Now to the meat of the argument. Shrake argues that a statewide ban on contraception would be constitutional if justified in the right way. He acknowledges that the Right to Contraception is considered a fundamental right by the Court and he outlines the standard of review in contraception cases. The Court has established that regulations of contraceptive devices are subject to strict scrutiny. Strict scrutiny allows government to infringe upon a fundamental right only when it serves a compelling state interest and only if the infringing act is narrowly tailored to serve that interest with as little infringement as possible.

Shrake claims that a state that wishes to ban contraceptives would need to argue that the ban serves to protect the health of its citizens while defending the institution of marriage. He cites cases that show that protection of the health of the citizenry has been considered a compelling state interest, as has the promotion of the institution of marriage. The great bulk of the paper is spent showing, first, that contraceptives pose a significant enough health danger that a state would be justified in banning them across the board and, second, that contraception has harmed the institution of marriage and therefore banning it would serve the compelling state interest in defending marriage.

Setting aside the arguments about damage to health and marriage for now, Shrake has been pretty above-board this far in his summary of the standard of review and the grounds for attacking contraception. What's troublesome, though, is his articulation of the particulars of proving a compelling state interest. He cites in particular a case involving the dormant commerce clause (which, sort of, forbids states from enacting regulations that impede interstate commerce). The case of Maine v. Taylor seems to establish that whether a regulation serves a compelling interest is a matter for the trial court to decide based on a preponderance of the evidence. Shrake relies on this throughout the paper to make increasingly grandiose claims about how little the state needs to do to justify infringement of a fundamental right, so it needs to be addressed at the outset. First, Taylor is a Dormant Commerce Clause case, not a Substantive Due Process case (which is what a Griswold challenge would be). So any comparison is dubious at the outset, though this isn't necessarily fatal. The problem is that Shrake was very careful in selecting this case while ignoring a lot of others that invoke strict scrutiny. To put it simply, the Court just isn't consistent about how it determines whether a law serves a compelling interest and is narrowly tailored or not. The Court in Taylor makes some very strong claims about how it is for the trial court to determine whether the state interest is compelling, and that these findings of fact are not to be questioned on appeal. All well and good, but for the Court's tendency to ignore this edict and simply review challenged laws on their faces, regardless of the district court's findings of fact. The Court's willingness to defer to the district court's findings tends to depend heavily on whether or not it agreed with those findings. Shrake makes the extravagant claim that a determination by some podunk magistrate judge that contraception might, possibly, harm someone's marriage, somewhere, will tie the Supreme Court's hands and spell the doom for the Right to Contraception. Perhaps if the Court behaved consistently with Taylor it would, but generally the Court has not.

Moving along, Shrake next argues that a ban on contraceptions would serve the state's compelling interest in protecting the health of its citizens. His justifications fall into three broad categories: First, contraception, on its face and by its nature, harms health. Second, the side effects of contraception could justify banning them for health reasons. Finally, availability of contraception leads to more sex, which in turn leads to more transmission of STDs, and so the state has a compelling interest in banning contraception to prevent the spread of STDs.

The first argument is that the natural, healthy state of the human body is one of fertility. Contraceptives, by their nature, impede fertility. They therefore impede the health of those who use them. So, if you have regular non-contraceptive sex, there's an X% chance of a pregnancy resulting. The X% chance of pregnancy is therefore the bar for "Healthy." If you use a condom, the chance of a pregnancy resulting is something less than X%. Your body is therefore objectively not performing up to its full capacity to impregnate/be impregnated, and so you are unhealthy. Thus, contraceptives impede health, and therefore the state has a compelling interest in banning them.

Leaving aside any number of other objections to this reasoning, and they are many, it suffices to say that it is highly unlikely that a court that recognizes a right to contracept as fundamental will find that contracepting is unhealthy by its nature. Moreover, even using Shrake's generous anything-a-trial-court-says-binds-the-Supreme-Court-now-and-forever standard for determining if a compelling interest exists, this argument is philosophical, not factual. The Court is in no way bound by findings of philosophy made at the trial level.

The second argument is Shrake's most compelling. It lists the litany of negative side effects associated with various contraceptives and argues that a state could rely on these side effects to ban all contraceptives. He concedes, though, that such side effects aren't universal of severe in many cases, so he doesn't lean on this argument too heavily. Nonetheless, this is the closest he comes to a good argument for how a state might justify a universal contraceptive ban. There's no doubt that a state can regulate contraceptives; it can force products off the market that present too great a risk to consumers. Moreover, states can ban whole classes of other medicines if it determines that their side effects create too great a health risk. The difference, though, is that while there isn't a fundamental right to aspirin, there is one to contraceptives. And the problem, as mentioned, is that while the facts might support a ban on some contraceptives, it would be very difficult to twist them to support a universal contraceptive ban. It would be interesting to see how the court would deal with a statute that, for instance, banned all contraceptives except condoms on medical grounds. I still don't think it would pass strict scrutiny, but I do think you could at least make the argument without being laughed out of court.

The last argument, about STDs, marshalls some social science data to argue that the legalization of contraceptives leads to a rise in the transmission of STDs. Shrake seems to realize he's on shaky ground here because he falls back on his loose evidentiary standard. He argues that a trial court need only find that it is a possibility that legalization of contraceptives lead to increased promiscuity, and that increased promiscuity could lead to more STD transmission, to justify a total ban on contraceptives.

Allow me to make something clear: Shrake is dead wrong in his assessment of what is necessary to constitute the sort of compelling interest required to overcome strict scrutiny. The standard of review that he is articulating, that it is more likely than not the case that there exists the possibility that this law could, perhaps, cause something, somewhere to happen that the state would like to happen, is emphatically not the standard for strict scrutiny. Using the Shrake standard, the government could justify a ban on all speech critical of the government on the grounds that somebody, somewhere, might misread it as a call for violence against the government, and therefore the ban serves the compelling interest of protecting national security. Shrake sets the standard for strict scrutiny so laughably low that we know he must be using some sleight of hand, like those math tricks that purport to show that 1 = 2.

Anyhow, the evidence on STD transmission and contraception is conflicting enough that it's unlikely that the Supreme Court would buy this argument.

Shrake then moves on to marriage. There's a fun passage where he compares sex to nuclear power; enormously useful when used carefully, but endlessly destructive if used incautiously. Therefore, throughout history government has regulated sex the same way it regulates nuclear power today. Through adultery and fornication laws it forbids all sex outside of sanctioned marriages. Through laws that define what are legitimate marriages it ensures that the only sex that occurs is sex between pairings the government approves of. And once sex is corralled into carefully defined marital relationships (and other laws ensure that no sex is occuring outside these relationships) the government can carefully regulate marital relations to ensure that the awesome, fearful power that is sex is not handled in an incautious way. All it takes is one act of sexual intercourse in reverse cowboy position and BAM!, there goes Cincinnati.

Okay, so that passage is one of the more overwrought. Still, he then moves on to the less goofy argument that contraceptions lead to divorce and divorce is bad for marriage. You could make a darn good philosophical argument that, if the government's concerned with the overall institution of marriage, ensuring that fewer marriages end in divorce isn't necessarily the way to go about it. That is, those marriages that would otherwise end in divorce probably aren't the pillars you want the ediface of marriage to be standing on. Maybe letting divorce happen is good for the overall institution, insofar as it provides for error correction. Nonetheless, the broader problem is that the social science data isn't quite clear yet that contraceptive access leads to divorce, and if it does why that should be. Shrake posits that it's because contraceptive access makes extramarital affairs easier. Leaving aside, again, the question of how great these marriages in which the spouses would be having affairs and divorcing if only there was a way to avoid getting pregnant and/or infected, this argument faces a narrow tailoring problem. The problem is sex that occurs between a married person and an unmarried person, but a ban on all contraceptives means that contraceptives also can't be used in sex between married partners, which isn't alledged to have a bad effect on marriage, or sex between two unmarried persons, which also isn't alledged to harm the institution of marriage. The regulation would be overbroad, and so it would fail.

Shrake concludes with a paean to the Rhythm Method. He argues that banning all contraceptives would be narrowly tailored, because people can always use the Rhythm Method to avoid pregnancy. It seems unlikely that the Court would buy this as a reasonable alternative to contraceptives.

I don't want to seem like I'm obsessed with my roommate's sex life, but...

First, let me say I'm completely fine with my roommate having sex, especially since he has it in his own room. I don't even mind that it's loud, or happens late at night; the walls are nicely insulative, and I'm usually up anyway. I'm just mortified about my own activities when the sex is happening. If I were having sex, I'd want to be as little a nuisance to my roommate as possible. Therefore I'd rather he be walking around going about business as usual rather than, say, putting on headphones or locking himself in his room or whatnot. So I tend to act as though nothing's happening. But then I worry that my activities might be loud and annoying when my usual business at that moment is, say, washing the dishes or taking out the garbage or tromping around on the creaky floorboards in hiking boots. Is this taking casualness too far?

Which leads me to my final question, which is pressing since the roommate is mid-coitus: Would practicing the banjo while he's performing in his carnal carnival be stepping over the line that separates "casual indifference" from "passive aggression?"

I give up. I've been trying to come up with a post against heteronormativity all day and can't overcome writer's block. This doesn't mean I'm not against heteronormativity; I just can't think of anything interesting to say right now. For actual, new posts against heteronormativity, go to Blac(k)ademic, who's running Blog Against Heteronormativity Day.

As some small consolation, I'm re-posting an old heteronormativity-related enty I did a few months ago:

Breeder Centrism in Tort Law

In recent years a new type of law suit has arisen: the wrongful life suit, sometimes referred to as a wrongful birth suit. These suits are a species of medical malpractice. A doctor botches a sterilization, be it a vasectomy, tubal ligation, or whatnot. The party who received the operation behaves as though they were sterile even though they remain fertile. The result is a pregnancy. Wrongful life actions have been recognized by most states, and I don't believe any state has explicitly refused to recognize them. At trial everything is very similar to medical malpractice, the procedure is discussed, experts are brought in, negligence is argued over, and, if the jury finds for the plaintiff, damages are assessed.

The damages are where things get tricky. If the plaintiff had an abortion things are pretty pat. The plaintiff generally gets compensation for the cost of the botched sterilization, the cost of another sterilization, the cost of having the abortion, and any related medical bills and lost wages. There might also be emotional damages. Things get more expensive if the plaintiff decides to have the baby, then put it up for adoption. There, in addition to the above costs, the doctor (or the doctor's insurance company) generally has to pay all the expenses related to the pregnancy, including considerably more lost wages. Still, though, nothing particularly controversial.

What happens, though, if the plaintiff decides to keep the baby? Now the question is to what extent the doctor should be held liable for the cost of rearing the child. This is, after all, a baby that the plaintiff did not want, and that would not exist but for the doctor's negligence. The rule of thumb for torts is that the plaintiff should be "made whole," that is, the plaintiff should be put financially back in the same situation she would have been in had the accident never occurred. Kids are expensive. In order to put the plaintiff in as good a situation as she would have been in had the sterilization been successful, it follows that the doctor ought to pay the entire cost of rearing the child.

That, of course, is how things probably would work if wrongful life suits were treated like any other cause of action. In practice, courts have found a great many ways to avoid doing so. When considering tort suits, courts are often asked to decide which damages are legitimate and compensable and which are not. In this case, most jurisdictions (31 as of 1997) don't allow child-rearing costs when computing damages. Two jurisdictions (New Mexico and Wisconsin) do.

The courts have offered a number of reasons for ignoring child-rearing costs. First, the costs are too vague to assess. Who know how much it would actually cost to rear this child, and whether the plaintiff would actually put the money to that purpose? Because these costs are too indefinite, too expensive, and too long-term, the courts should not consider them. This doesn't stop courts from assessing vague, expensive costs incurred over a long period in other malpractice cases, but it is apparently a problem in these cases.

Another argument proferred is that the cost would be far too heavy a burden for the poor doctor to bear, just for one little mistake (Courts are quite fond of these sob-stories about the poor defendants forced to pay for their negligence. These stories are only persuasive until you realize that a court case is about deciding which of two parties should bear a huge loss. The poor doctor could not stand to bear the financial burden of raising this child! It therefore follows that the mother ought to bear the financial burden instead). The less-objectionable policy argument is that if you make potential damages too high, doctors will simply refuse to perform these operations out of fear of botching them. The cost of performing these operations will skyrocket, hurting those who would seek sterilizations in the future.

There are a few other, more troubling arguments that some courts have found persuasive. One is that the plaintiff assumed the cost of rearing the child when she decided not to abort the child or give it up for adoption. This facile argument handily ignores the moral dimension of those two alternatives. Abortion is obviously a sticky issue for a lot of people, and once you've decided not to abort the child, adoption isn't without its own problems. The pregnant party is between Scylla and Charybdis and the court is arguing that choosing one indicates the party prefers and accepts that option. They ignore the fact that the entire point of having the operation was so the plaintiff would not have to make that choice in the first place. A variant on the assumption of risk argument is that the plaintiff assumed the risk of pregnancy by having sex, regardless of whether the sterilization had occurred. This argument only makes sense if you see sex as a morally wrong act in and of itself. The doctor acted negligently in performing the sterilization, while the plaintiff had sex under reasonable the belief that it couldn't result in pregnancy. Unless sex itself creates culpability, there's no reason to look at the two parties and declare that the plaintiff should pay.

The other troubling argument ties into the ambiguity of the costs argument. While we don't know exactly how much it costs to rear a child, we do know it costs something. How do you move from the idea that we don't know exactly how much child-rearing will cost to the conclusion that we should not award any child-rearing costs at all? Enter the Bundle of Joy argument. The courts have argued that there is an indisputable joy in having and raising a child. The plaintiff, they argue, is trying to benefit from this joy without paying the attendant costs. Therefore, to get a fair assessment of the plaintiff's damages, we must balance the cost of raising the child against the joy the plaintiff derives from that child. Since it's so hard to measure these things, the courts decide to call it even and leave the damages at 0.

It hardly bears pointing out that this argument is intensely patronizing. It ignores the fact that the plaintiff was sterilized precisely to avoid having a child. She could have any number of reasons for doing so. Maybe she can't afford a child, or maybe, heaven forbid, she just doesn't like kids. Moreover, sterilization operations aren't exactly something you do on a whim. The plaintiff carefully examined her situation and decided that the costs of having a kid outweighed the benefits. She therefore paid for an expensive surgery to prevent it ever happening. The courts have looked at this and said, "Awww, you didn't REALLY mean that. Everyone loves kids! Now go have fun with your new bundle of joy!" The whole idea forces heteronormative breeder-centrism down the plaintiff's throat. You can't possibly not want a baby; who in their right mind wouldn't?

What's even more insulting, however, are the three jurisdictions, and I don't know which states these are, that actually include the Bundle of Joy factor as a weight against other costs. That is, you get all the aforementioned medical costs, and then the court determines how much joy they think the baby will give you, attaches a dollar value, and subtracts it from those costs.

The only argument I find at all persuasive is the concern that imposing higher tort liability on doctors will raise the cost of the procedure in the future. The doctor botched the operation and the plaintiff did nothing wrong in acting under the false belief that the doctor had done the job competently. The court should estimate the cost of raising a child to, say, the age of 18 and assess it against the doctor. The doctor's almost certainly in a better position to pay than the plaintiff; setting aside the likely disparity in incomes between the two, the doctor will have malpractice insurance to the hilt. There's no such thing as unwanted pregnancy insurance. The doctor screwed up, and the doctor should be responsible for the results of that mistake.

Today was the last day of classes. Only four finals and a writing competition stand between me and the end of the first year of law school. Yay! Except for the finals and writing competition part.

I've been elected the new president of the Columbia Strategic Simulations Society, which sounds impressive until you realize that "Columbia Strategic Simulations Society" is a fancy name for Board Game Club and I was elected by acclamation (that is, nobody else ran for the position). Anyhow, I'm handling the club meeting tonight, our last of the year, and I'll be bringing the games. Here's the game list for the evening:

Twilight Imperium, 3rd Edition
The Settlers of Catan
Tsuro
YINSH
Domaine
Santiago
Puerto Rico
Ticket to Ride: Europe
The Traders of Genoa
Louis XIV
Blue Moon
Lord of the Rings: The Confrontation
Powergrid
Ra
Carcassonne (With The Count of Carcassonne Expansion)
Entdecker

Hopefully that'll be enough variety, in terms both of play depth and number of players, to keep everyone entertained for a few hours.

A final note, tomorrow is apparently Blog Against Heteronormativity Day. I'd certainly like to participate, though I'm not sure if I have much unique or interesting to add to the subject. Still, I'll try to think of something useful to say. I also thought there might be some readers who'd be interested in the war of internet screeds against heteronormativity.

I know there are a few people who read this who are into pen-and-paper RPGs, or who have at least dabbled in them. I just thought I'd pass along the news that Palladium Books, who make Rifts and Heroes Unlimited, among other game systems, is in serious danger of going under for good. It sounds like there was some malfeasance against the companies, some deals gone sour, and the profoundly unwise decision to put a lot of their eggs in the Nokia N-Gage basket.

I've never really done much with Palladium's products, but I know some people who do, and it's always a shame to lose a dedicated Role Playing Game company. I've considered buying some Rifts stuff in the past (due to my unhealthy obsession with world-building), and might pitch in for a book now that they're in need. Just thought I'd pass the news along for anyone who might be interested.

What would be the opposite of mood music? Like, what sort of music would take someone who is in the mood for sex and makes them not in the mood for sex any longer? For purposes of this question, it has to be mainstream music; no children's songs or any such.

While we're recommending webcomics, I thought I should put in a word for my current personal favorite, Something Positive.

Something Positive's interesting and unique, as webcomics go. It started out as a fairly simple gag-a-day strip, but has gradually become a lot more serious and dramatic. That's actually not too uncommon; the same trajectory from funny-to-teh-drama happens in a significant portion of webcomics. The difference in Something Positive is that R.K. Milholland has managed to successfully transition from a pure gag-a-day strip to a strip with well-developed characters and an ongoing plot without sacrificing humor or changing the fundamental feel of the comic. The first strip is cynical and witty and it maintains that same essential tone throughout the whole run. It's a pretty rare strip that doesn't have some kind of joke, and the few that are pure drama are handled so well that it's hard to complain about them.

The strip started out with a fairly small cast of real characters and a coterie of cardboard cut-outs. Since then the main cast has grown and evolved, but done so in a very gradual way. Davan now is different than Davan four years ago, but it's not the result of any hammer-on-the-head life-changing after-school-special moments. And that's happened with all of the main characters. Meanwhile, the background characters have been developed and fleshed out into genuine people. It's weird to go back and read Monette in the early strips, where she's played as just a big dumb pseudo-lesbian, because now she's a full-on main character with emotions and depths. She's (literally) become a part of the family.

The plot's also well-done. Milholland does an excellent job of developing the story in a way that you don't necessarily expect, but he does it without cheating. The movement of the plot makes complete sense when you go back and re-read the strips, even if you didn't see where things were going at the time. Another unique thing about S*P is the way that a lot of the plot is told in a very subtle way. Milholland respects his audience enough not to hit them over the head explaining things. You're expected to pick up on certain plot points that happen in the background while the strip is looking elsewhere.

Reading through the archives, the strip starts out with a pretty vicious tone. The first strip is representative of the nastiness that was S*P early on. As the comic has evolved the humor's gotten a bit softer at the edges, but no less cynical. The surprising thing about Something Positive is that a strip that started off with a joke in astoundingly poor taste about abortion could evolve into what is probably the most emotional and affecting webcomic on the scene today. The characters are cynical bastards, but they're cynical bastards you come to really care about. So even if the early strips turn you off, I'd recommend plunging through and seeing if it doesn't grow on you. I'd recommend going through at least April 21, 2002. I also would advise against starting at the current strip and working backwards; there are a lot of spoilers in the more recent strips, and it'd be a shame to ruin some of the surprises. Also, don't read the cast page. It's up to date, which is nice, but that means it's full of spoilers.

Oh, also, Choo-Choo Bear. Choo-Choo Bear is impossible not to love. And that's good, because chemo-kitties need extra love!

Yeesh. Power failures left the Roosevelt Island Trams, along with all of their passengers, dangling over the East River last night. The trams weren't started again; the passengers had to be rescued via gondola. This is another very good reason not to take the Roosevelt Island Tram. The other major reason not to take it is because if you do, you end up on Roosevelt Island.

This is shamelessly stolen from Atrios. In re: the resignation of White House Press Secretary Scott McClellan and the search for his replacement:

CNN's John Roberts on how the job of White House press secretary would be described in a job listing:

"Be willing to take it full in the face every day."

Random White House Press Secretary Fact: Nixon's Press Secretary during Watergate, Ronald Ziegler, started his professional career as one of those tour boat guides telling transparently not-funny jokes on the embarrassingly racist and imperialist Jungle Cruise at Disneyland. And he ended it feeding transparently not-true stories to the American people for the embarassingly racist and imperialist Nixon Administration. Zing!

It's ten to midnight and I'm hungry.

Well, not really hungry in the technical sense of craving sustenance. I'm plenty full from dinner. What I need is sugar, and it's driving me mad. I pace into the kitchen every five minute to see if any chocolate had magically manifested itself in my cupboards since the last time I checked. But no. The craving gnaws at my brain. Surely SOMETHING will satisfy my lust for succrose? I've jelly, but the only thing I have to put it on is brown rice bread, which turns every dish in which you incorporate it into pure hatred. I have cereal, but no soy milk. I have instant pudding, but, again, no soy milk. At every turn I am thwarted. I just finished my raisins last night. There's no more fruit left. There isn't a sweet snack in the entire fracking apartment!

What time is it? Five to midnight. Shit. The bakery down the street will be closed. I could run to the grocery store up Broadway a few blocks, they're open 24 hours. I could also get something more instantly gratifying at the drugstore in the opposite direction. But should I? It's so late; is it wise to be walking the streets alone past midnight on a Tuesday in search of candy bars? Moreover, what kind of a person would that make me, leaving my comfortable apartment after all sensible people have gone to bed, looking for a sugar fix? The witching hour is upon me and still me desire burns.

I can stand it no longer; I am going out. When I return, if I return, I will come bearing the nefarious fruits of my dark debaucheries. Oo, maybe a Twix...

I recently got The Elephant Man from Netflix. I sat down to watch it about a week ago. I was drowsy when it started, but quite enjoyed what I saw. After about forty minute my sleepiness overtook me and I decided to turn it off and pick it up later. Today I returned to it. I turned on my DVD player, put in the disc, and waited for the title menu to load.

Shit.

Shit, shit, shit.

I had three options on the menu: Special Features, Set Up, and Play. I checked Special Features. Theatrical Trailer, production featurette, interview with David Lynch. Try set-up. Language and subtitle options. I tried selecting Play and hitting the chapter skip button. No dice.

I had forgotten that David Lynch thinks very highly of himself and his films. So highly, in fact, that he does not appreciate the idea of folks watching his films willy-nilly, in manners that he does not approve of. Therefore, The Elephant Man, like Eraserhead before it, has no scene selection and no chapter stops. If you wish to watch a David Lynch movie, you must watch it the way David Lynch intended: Starting with the first frame, you must proceed through to the last frame, viewing each frame in order and giving it its proper due. If you wish to leave a David Lynch film that's your prerogative, but if you ever wish to see the ending you must start over at the beginning again and appreciate the genius of its totality.

I'm getting a bit hostile. DVD players aren't well-designed for fast forwarding, so it took fifteen minutes of holding down the "search forward" button to get to where I left off. This left me somewhat peeved. I very nearly took the DVD out and sent it back then and there.

It would have been a shame if I had, because The Elephant Man is actually a very good movie. I recommend it highly, though I'd also recommend setting aside the two hours, four minutes needed to watch it in its entirety, because David Lynch doesn't want you leaving in the middle.

Enough grousing. The Elephant Man is actually a normal movie, which if you've seen any of David Lynch's other works should be a shock. That is, it has a sustained and coherent narrative that starts at the beginning, moves to the end, and almost never makes you want to punch David Lynch in the face for being a self-absorbed pretentious git without the faintest idea of how to communicate his thoughts in a visual medium. This movie, by being as good as it is, actually makes me think less of Lynch: I'd always assumed that he couldn't shoot a movie that makes sense because of some infirmity on his part. Perhaps he had a great story in his mind, but he lacked the ability to put it onto the screen in a way that was understandable to others. I could certainly understand that; it's hard, in telling a story, to be sure that you've included all the parts that are necessary for someone else to make sense of it. Your mind fills in the gaps that you leave out, and you risk neglecting crucial details and thereby leaving your audience puzzled.

I had always assumed, until now, that David Lynch is just one of those people who can't quite tell a coherent story. I had a theory that critics and others had mistaken this for genius and, as a result of their ill-deserved praise, Lynch had never bothered to cultivate the core competencies of story-telling. But now I find out he can make a movie, and this makes all his other movies the more intolerable. Before I could watch Dune and say "...Well, it was certainly a nice try. You definitely put a lot into it, David. Maybe you should pick a slightly less ambitious subject next time." But no. Now I know that when Lynch makes me listen to Paul ramble cryptically over and over and over, he's doing it because he decided consciously that this is better filmmaking than actually providing the context necessary to make what Paul's saying make a damn lick of sense.

Wow. I didn't mean to get this angry. Especially since The Elephant Man is quite good. I recommend it. But, because he took out the chapter stops, I refuse to do Lynch the favor of elaborating as to why I like it.

This is a cheap and simple recipe that will give you tasty, salty, slightly spicy crackers.

1 Cup Flour
2 tablespoons Earth Balance or Butter
1/2 teaspoon Salt
1/4 cup Water plus more as needed
Cayenne
Garlic Powder
Crushed Red Pepper Flakes

Preheat oven to 400 degrees.

In a food processor, combine the flour, Earth Balance, salt, and spices to taste (I put in a couple shakes of garlic powder, about five dashes Cayenne, and three dashes of pepper flakes). Pulse until well mixed (it'll still look like flour, but a bit more clumpy and darker in color). Add in about 1/4 cup of water and process. It'll probably be pretty loose still, so add water, about a teaspoon at a time, and pulse. Stop once it's cohesive but not sticky. If you haven't a food processor, just do the same thing in a bowl with a spoon. It won't be as easy, but it's not notably hard, either.

On a lightly floured surface, roll out your ball and flatten it with a rolling pin until it's quite thin, about the thickness of a pie crust. Transfer to a baking sheet, then lightly score with a knife so that you can break apart the crackers easily when done. Place in the oven for 10-12 minute until it's a light brown; don't remove too early or you'll get soft crackers. If you remove them too late, though, you'll have melba toast, which may or may not be a good thing. In any case, take them out and let them cool.

These fresh young fellows were made with Earth Balance and a 50/50 mix of white and wheat flour. I scored them before putting them on the baking sheet, which made the flattened dough impossible to transfer in one piece. So I broke them up before baking, which led to some getting carbonized while others were baked nicely. Nonetheless, all are quite tasty.

I have a great Criminal Law professor. He's smart, funny, engaging, a fantastic teacher, and an incredibly deep thinker on the subject. He's also a federal judge, appointed by Clinton in his last year in office. Classes are from eight to nine in the morning, Wednesday, Thursday, and Friday. Immediately after class he heads downtown, dons his robes, and judges. Each week about ten students are put on-call, meaning he'll call on them to discuss the cases we read for each lecture. In turn, each Friday he invites all the students who were on call that week to join him for lunch at the federal courthouse downtown. We're also invited to hang around in the audience to observe the proceedings in his courtroom, hearings, sentencings, trials, etc.

I was, as I have mentioned, on call in class this last week, and I decided to take Judge Lynch up on his invitation. I headed downtown after Con Law and entered his courtroom around noon. They were in the middle of proceedings on a hearing, and it was quite an interesting case. It concerned a man who'd been sentenced about two years ago for violating a deportation. He'd apparently been here illegally, was caught on a fairly minor drug offense, and was deported. He then came back and was caught again. In the United States, there's nothing criminal about being here when you're not entitled to be; we just pack you up and send you home. Once you get deported, however, it is illegal for you to come back in violation of your deportation, and if you return you face criminal penalties.

This fellow had been sentenced a couple of years ago by Judge Lynch. Lynch had given the guy the minimum sentence within the Federal Sentencing Guidelines, and had indicated when he passed sentence that he'd have loved to give the petitioner less, but that his hands were tied. Within a year of the sentence, however, the Supreme Court held in the case of Blakely v. Washington that the Federal Sentencing Guidelines were an unconstitutional violation of a defendant's Sixth Amendment right to trial by jury, and therefore should be taken only as guidelines by a judge, and not as binding. Unfortunately for the man before the court yesterday, the deadline for an appeal had long passed.

So instead he filed a Writ of Habeas Corpus. Habea Corpus means roughly "holding of the body." It's a declaration that the prisoner believes the government has imprisoned him unlawfully and a request that some alledgedly defective aspect of the process and imprisonment be judicially inspected. In this case, the prisoner, who can't speak English, insisted that the had requested that his Legal Aid lawyer file an appeal. The lawyer, for whatever reason, didn't do so. At the time (pre-Blakely) the lawyer felt he had no grounds for an appeal, and would have advised the prisoner of this; the concern is that something was lost in translation and that, while the prisoner had requested an appeal, the lawyer never got the message.

When I arrived the Legal Aid lawyer was being examined. The prisoner himself had been examined earlier, and his sister, who was involved as a go-between in filing some of the various petitions, had been examined before that. According to the Legal Aid lawyer's record of the prisoner's case, there had been no plan for an appeal; normally he writes APPEAL in big letters across the front when a prisoner requests an appeal, in addition to checking a box on the form. Neither was on this form. So if the prisoner requested an appeal, the lawyer never heard it. Nonetheless, the lawyer had no specific recollection of the prisoner's case; it's important to bear in mind that, according to the lawyer's testimony, he's handling over 60 cases at a time in all areas of criminal and immigration law, so it's difficult to extract a specific recollection about one case nearly two years ago.

After the lawyer was examined and the two sides gave their summary arguments (punctuated with questions from the judge), Judge Lynch entered his verdict. The petition was denied, and the petitioner was to be returned to prison to serve out the remainder of his five-year sentence. Judge Lynch gave his reasoning from the bench, and he elaborated upon it some more in discussions at lunch. Weighing on the side of the petitioner, the story as presented seemed plausible. The petitioner was dealing with a foreign legal system, he had to work through a translator, and it seemed possible that he had requested an appeal and it had gotten lost in the shuffle. While he was leaning toward denying the petition before the hearing, the judge was nonetheless prepared to be persuaded otherwise, and was trying to formulate a way of granting the petition without making the Legal Aid lawyer look bad, since the judge had heard him argue before and felt him an upstanding member of the legal community. Two big factors weighed against the petitioner, however. First, granting the writ was unlikely to do very much. Second Circuit precedent is that anyone sentenced under the pre-Blakely scheme of using the Federal Sentencing Guidelines has to be re-sentenced using the Federal Sentencing Guidelines. This is to stave off a wave of habeas petitions for re-sentencing now that the guidelines aren't binding. The best the petitioner could hope for was a reduction in the sentence of about 3 months, based on a fuzzy factor within the guidelines. The other major factor was that the petitioner had presented two accounts that, without going into the details, were wildly inconsistent with one another. A very strong argument for a violation was made in the sworn affi davit that went along with the Habeas petition, while at the hearing the petitioner told a completely different, much milder, though still possibly persuasive, story. The judge felt that the difference was beyond a simple mistranslation between the jailhouse lawyer and the petitioner, and that this counted heavily against the petitioner's credibility. This proved fatal in a case in which, really, the petitioner's say-so is the only evidence we have of whether he requested an appeal or not.

After a bit of further conversation about the judge's legal career and advice for future lawyers, we returned to the courtroom. The judge had one further proceeding on the docket for the afternoon: A sentencing. A young man, age twenty, was being sentenced for gun running and armed robbery. He had pled guilty to the crimes, and the defense and prosecution presented evidence for why the sentence should be as low as possible. The defense, naturally, did the brunt of the work in this regard. They argued that he had had a troubled childhood which led him to crime, but that he had the support of his grandmother and a home to return to and rebuild his life after prison (increasing the likelihood that he could become a productive member of society). Evidence was submitted of his intelligence and his promise; he had held a number of jobs, including as a clerk at a large Manhattan law firm, and letters had been submitted from several prominent members of the community attesting to his good character. The defendant was remorseful, it was his first offense, and he had pled guilty and cooperated with prosecution. The prosecution added that his testimony had led them to some others involved in the gun running. Both argued that, while the Federal Sentencing Guidelines were not binding, the judge ought nonetheless to grant the minimum sentence within those guidelines.

The judge passed sentence. It's certainly true that the Federal Sentencing Guidlines aren't binding, but this doesn't work in the defendant's favor in this case. A peculiar quirk of the Federal Guidelines meant that, thanks to the grouping of offenses, the range of sentences for Armed Robbery + Gun Running were exactly the same as the range of sentences for Armed Robbery alone. The defendant was thus, in theory, getting Gun Running for free. But judges are no longer bound by the Federal Sentencing Guidelines, and Judge Lynch has a zero tolerance policy towards gun running. The state of New York takes a very hostile attitude towards guns, and the defendant knew that from growing up here. Moreover, he knew that the guns he ran from Georgia were cheap guns of the kind used in violent street crime. These were not, said Judge Lynch, being used to shoot folks on Park Avenue; these guns were being used in the very neighborhood that the defendant had grown up in. Moreover, the defendant knew exactly who he was selling the guns to and to what purpose they were being put, particularly since he had put one of those guns to that purpose himself. The judge felt that a sentence that only looked at the defendant's armed robbery would fail to account for all the violent crimes that will be the indirect result of his gun running. It is only because of all of the mitigating factors mentioned by the defense and prosecution that the judge had decided not to impose a sentence above the maximum under the Federal Sentencing Guidelines. The defendant was sentenced to 65 months in prison, which I believe was the maximum sentence advised by the guidelines.

All in all, quite an interesting day. Unfortunately, Judge Lynch's commitment to the Federal Government prevents him from teaching many classes at the law school, though apparently he teaches an upper-division seminar on sentencing (that's nearly impossible to get into). Still, I think it's worth trying, and I think I may take some future afternoons off to sit in Lynch's audience.

Oh, interesting side note: Lynch apparently attained some degree of fame a little while ago when he was the judge in the Lil Kim trial. He's responsible for sentencing her for perjury.

We're all familiar with the common recurrent nightmare of having a college test for which you haven't studied or attended class all semester. Last night I had a frighteningly realistic variant on it. I dreamt I was attending the last lecture of a class I'm taking right now, Constitutional Law. It was taught by my professor. He wrapped up his lecture, then suddenly told us to boot up our exam software. His TAs began passing out exams. "Since you're all here right now," he said, and since you all have the same schedules and this is the absolute last lecture for anyone this semester, I've decided to just give you all the exam right now. You have four hours, answer the question that's asked and no other question."

My heart sank. I've been somewhat slacking, studying-wise, all semester, and had been counting on a week and a half of dead time between the last lecture and the final to prepare myself for the Con Law final. But I couldn't well say that to the professor. Luckily, some fellow student in a similar situation but possessed of more courage than I rose to my aid.

"But wait a minute, Professor! We've been counting on this study period! It's not fair to give us the exam on the spot like this!"

"Ah," replied the professor, "but it is fair! The test is graded on a curve, so your grade isn't dependent on any universal metric of performance, but rather on how well you do in relation to everyone else in the class. So the only way that this could be unfair is if it structurally favors some students over other students. No student has had any prior notice of my decision to move the exam up, so you've all been caught equally by surprise. You've all had the same amount of time to study. It's reasonable to assume that you'll all be putting every moment of time you have into studying over the week and a half until the scheduled exam time, so none of you is likely to gain or lose any advantage over anyone else in that period. Plus you are all presumably fully prepared to handle the test already, having been diligently keeping up with the reading in your preparations for each lecture. Therefore, why not give the exam now? You're all here, you're reasonably prepared (or at least, none of you is more prepared than anyone else), and you'll get it out of the way now and have one fewer exam to worry about. Plus I can then get a head start grading exams and hopefully get your grades posted before the exam period is done."

I don't recall the contents of my phantom exam, but I can't say that the professor's justification mollified me very much. Now I'm starting to think, with one week of lectures left, that it might behoove me to get a leg up preparing for some of my exams. Some of these professors are tricksy sorts...

Am I the only one who can't see Christopher Hitchens:

without being reminded of Richard Burton in Who's Afraid of Virginia Woolf?:

Why does Word's spell check dictionary recognize the word "Appellant," but not the word "Appellee?" Logically, for every appellant (or set of appellants) there must be an equal and opposite appellee (or set of appellees). What gives?

If I might be indulged to complain briefly about our career services here: Last Fall they corralled us into a large auditorium to introduce us to the services they provide and prepare us for the First Year Summer Job Hunt. Their advice was to contact friends and relatives and explore possibilities working with them. In case that didn't work, they gave everyone a free copy of the National Association of Law Placement's big book of contact information for every legal employer in the country.

In other words: Your two best bets for finding a job are nepotism and cronyism. If that fails, here's the phonebook; get calling.

On the other hand, this is somewhat more helpful than the advice I got from Berkeley career services, which seems to operate on the premise that if nobody knows your organization exists, then nobody can give your organization a bad evaluation.

Just a quick note: There are posts I've been meaning to write, comments I've been meaning to leave, and e-mails I've been meaning to respond to, but they'll probably have to wait until Friday night. I'm on call this week in Criminal Law, meaning that I'm on a very small list of people whom the professor will be calling on this week to interrogate about the readings each night. It is, thus, more important than usual that I 1. do the reading and 2. understand the reading at a sufficiently deep level to discuss it lucidly at 8 o'clock in the morning.

It does not help that our professor, after moving through the readings at a languorous pace throughout the rest of the semester, has decided to start catching up this week, the penultimate week of lectures. Thus, we are covering three subjects per class this week, so that means three night's worth of reading to assimilate each night. I am not, needless to say, a *happy camper*. It is *frumple*. We are *dancing*!

The esteemed Justice Woolsey addresses a matter of grave import. The meaning of language is a matter of deep significance to all professions, but especially the legal one. Moreover, a precise and accurate understanding of musical lyrics is utterly essential to the continued reasoned governance of an increasingly complex and interdependent society such as ours. It is for these reasons that this court grants certiorari to answer the narrow question "In precisely what manner does a baby want God's love?"

This is a matter of first impression for this court. The question derives from an issue of textual interpretation: How are we to understand the following lyrics from the band Iron & Wine's song "Fever Dream"?":

"I want your flowers like babies want God's love"

The authors of these lyrics clearly intended us to understand their desire for the audient's flowers within the context of the manner in which babies want God's love. Unfortunately, the careless authors failed to provide a precise definition of their terms and we are left to seek sources outside the text to allay our confusion. It is advised that future authors of song lyrics understand that, if they are not satisfied with the interpretation that this court lays down today, they ought to write their lyrics with a great deal more care and precision so as to prevent such ambiguous terms slipping in. In the instant case, a verse appended to the end of the song providing explicit definitions for all the relevant terms used would have proved most helpful, and would have obviated the need to turn to the canons of construction in examining the lyrics.

Sadly, no binding precedent exists for this court as to the interpretation of the phrase "like babies want God's love." The authors are advised that if they are to use a term of art, as they have chosen to do here, they would do well to choose one with a precise and well-understood legal meaning. In the absence of such guidance, we are left to reason from unrelated, but analogous, precedents.

We are faced with three principle questions: What, precisely, is a baby? What is God's Love? And to what extent and in what manner can a baby be said to want God's Love?

A search for the term "babies like" in the relevant annals reveals that a Washington woman is "Poppin' out babies like gumballs." 35 Sploid 184 (Wash. 2006). In the absence of contrary authority, we can therefore liken a baby to a gumball for purposes of interpreting these lyrics.

A further search for the term "God's Love like" reveals that "We should at once find that bitterness will close our hearts to God and His love just like turning a faucet on our shower." 54 ChristianSite 1094 (Ga. 1996). Clearly, in the cited opinion, our hearts are like faucets, and God's love is like water.

Thus we find that, because babies are analogous to the case of gumballs, while God's love is more or less equivalent to water, we can understand babies to want God's love in much the same way that gumballs want water. While gumballs can not, in any meaningful sense, be said to want water, given that they lack the mental capacity to form such a desire, the court can nonetheless extrapolate their interests in the matter, in much the way that a court can extrapolate the interests of a child who finds itself a ward of the court (noting that, as discussed above, children and gumballs are more or less equivalent).

Would, then, a gumball want water? Water, it seems, would wash away and disintegrate the protective outer layer of the gumball. We therefore treat with suspicion any contention of a positive affinity between gumballs and water. Further, water would leave a gumball soggy and waterlogged, a state that most would find uncomfortable indeed.

It is argued that saliva is equivalent to water, given that it is mostly composed of water, and that saliva is an integral part of the chewing process, which is an essential element of the gumball's intended purpose. We do not find this argument compelling. To begin, saliva is not just water, but contains also various acids. Moreover, the most essential part of the saliva is the acid, not the water. The water serves only to dilute the acid, which lends credence to the claim that water merely subverts the chewing process. Moreover, it is uncertain whether chewing is, indeed, the desired destiny of the gumball. Is its purpose to be determined by its creator? By its purchaser? Clearly it is not, given that we are examining the gumball qua gumball, and not anyone else related to it. Were it so, we would care not about the babies' desires for God's love, but their parents's desires. Given the inherently destructive nature of the chewing process, it seems premature to declare that chewing is desired by gumballs. It would, nonetheless, be a breach of decorum to rule on the desires of the gumballs to be chewed at this juncture; such a determination is better suited to a finder of fact at the trial level.

This court therefore holds that there is a rebuttable presumption that gumballs do not desire water at all. Therefore, babies do not want God's love, and thus Blood & Wine does not want your flowers. We leave open the possibility, however, that gumballs wish to be chewed, and that water is an integral and essential element in the chewing process. The lower court is instructed to conduct an inquest to produce a finding of facts on what, exactly, gumballs want. We remand the case to its court of origin for further proceedings not inconsistent with this ruling.

We just finished our really brief segment on Free Speech in Constitutional Law. It lasted roughly one lecture. This isn't because Free Speech isn't important, nor because there's not a lot to say about it (our professor claims, with some justification, that it's the most complicated area of constitutional jurisprudence). It's just that first year Constitutional Law is structured to give a general survey of constitutional decision-making, and Free Speech apparently isn't illustrative enough of the broad principles that the course focuses on.

The upshot of this is that we just read a small number of baseline cases, then the professor gave us a bunch of examples that he ran through in order to give a sense of the various facets of First Amendment jurisprudence. I thought it was a fun exercise. I don't think you need a lot of specialist knowledge to reason about the examples, plus they're on subjects most people have opinions about, so I thought I'd post the professor's examples here and see what people thought.

A few baseline legal principles: First, the general idea is that government is allowed to regulate speech in order to prevent imminent harm. More nebulously, the Court tends to decide whether a regulation is constitutional by balancing the free speech right on one side against the government's interest on the other side. If the government's interest doesn't warrant the offense to free speech, it's unconstitutional. Second, the First Amendment is believed to apply especially strongly to political speech, so speech with political ends gets extra weight in the balancing test. Finally, the Court tends to look harshly on regulations of the content of speech, but is more lenient with regulations of the time, place, and manner of speech.

With that taken care of, here's my professor's e-mail:

"For our discussion, please think about the following cases. In each case, if you think that government may prohibit or punish the relevant actor, ask yourself whether that is because: a) the actor has not engaged in “speech,”; b) the actor has engaged in speech but the government regulation is not targeted at the message of that speech; c) the government has targeted the message but it has done so in a narrowly tailored way that advances a compelling interest; or d) none of the above.

1) Gang leader GL says to his henchmen “Kill the leader of our rival gang,” which henchmen then do. GL is prosecuted for murder.

2) Anti-war activist tells anti-war protestors: “You are better than cannon fodder. Do not submit to the draft.” The speech occurs during wartime when there is a military draft. Activist is prosecuted for
conspiring to cause disloyalty, mutiny, and refusal of duty in the military forces.

3) During wartime, anti-war protestors display signs reading: “No blood for oil. Bring home our troops.” Protestors are prosecuted for conspiring to cause disloyalty, mutiny, and refusal of duty in the military forces.

4) Organizers of an anti-war rally want to congregate outside city hall at the conclusion of a march. The city authorities tell them that they cannot use the city streets or the square outside of city hall for the
protest march or rally because of traffic and congestion issues. The city authorities offer no viable alternative venue. The protestors sue, seeking the right to march and rally.

5) Same facts as 4 except that the city authorities offer an alternative route and rally location that the protestors consider substantially less convenient and appropriate. The protestors sue, seeking the right to march and rally where their expression will have the greatest impact.

6) A city prohibits the use of “sound trucks,” which ride the streets blaring amplified messages. The prohibition is applied to a candidate for mayor.

7) Upon receiving a grade of B+ in torts, law student says to professor: “I’m going to break your kneecaps if you don’t raise my grade to an A-.” Student is prosecuted for extortion. Variation: Suppose the statement is not conditional but simply a threat: “You prevented me from being a Kent
scholar. Now I’m going to make you feel my pain.” Student is prosecuted for assault.

8) Ku Klux Klan member burns a cross on his own lawn, which is clearly visible to his neighbors, an African-American family that has recently moved into the neighborhood. Klan member is prosecuted under a state law making it a crime “to display a symbol of hatred, such as but not limited to a burning cross or a swastika so as to intimidate persons on the basis of animus based on race, national origin, ethnicity, or religion.”

9) Anti-war protestor is prosecuted for burning a U.S. flag at an anti-war rally, under a statute prohibiting “the intentional desecration of the U.S. flag.”

10) Movie theater owner is prosecuted for running a pornographic film for paying customers over the age of 18.

11) City passes zoning law prohibiting all commercial establishments involving “adult entertainment” (defined as pornography) in residential neighborhoods. Theater owner sues to prevent the city from forcing him to relocate.

12) Adult is prosecuted for possession of “obscene materials” in his home.

13) Adult is prosecuted for possession of “child pornography” in his home. Child pornography is defined by statute as any visual depiction of naked minors.

14) State prohibits “snuff” films.

15) Administrative fine is issued to company for “false advertising” where tv ad states that the product will “permanently cure baldness” but clinical evidence indicates this is false.

16) Administrative fine is issued to company for “false advertising” where tv ad suggests that consumption of soft drink will attract good-looking people.

17) Federal law places limits on amount of money that individuals may contribute to campaigns of candidates for federal office.

18) Federal law places limits on amount of money that candidates for federal office may spend on their campaigns.

19) State law forbids discrimination on the basis of sexual orientation by “public accommodations,” defined to include certain membership organizations that utilize public facilities, including the Boy Scouts.
Boy Scouts claim that the requirement violates their right of “expressive association” insofar as it requires them to admit openly gay members.

20) Federal law criminalizes donations to certain listed “terrorist organizations,” even where the donation is made for peaceful purposes (such as food or health aid) to an organization on the list.

21) School district requires all children to say the Pledge of Allegiance at the beginning of each day.

22) Federal law forbids health care providers that receive federal funds from answering patient questions in a way that might direct patients to abortion providers."

So, what do you think? For each of these examples, Constitutional or not? Why? Don't feel obligated to give an answer to all of them, but if one or two seem interesting, I'd like to hear comments.

I am known, to some, as a baker of bread. For many months have I abstained from the joys of the oven in favor of more academic pursuits, but this evening I have succumbed once again to the black arts of Bagelry. And I took pictures!

The majority of this post will be aimed at the novice bageler. You will pardon me for being a bit elementary. Let me begin by addressing perhaps the most important question: Why bother baking your own bagels? Can't bagels be gotten with ease at your local bagelry for highly reasonable rates? I have several answers to this. First, the very act of baking bagels is fun, just as baking bread generally is fun. But I'm a baking fan, so your mileage may vary. Second, baking your own bagels (with certain caveats)is actually cheaper than buying them from a bagel shop. Bagel shops tend to charge 65-75 cents per bagel. With judicious ingredient shopping, however, homemade bagels cost less than 15 cents each. What's more, homemade bagels are tastier than store-bought ones, because stores almost all make a peculiar brand of puffy and bland bagels, whereas homemade bagels (using my recipe, at least) are dense and flavorful. Finally, homemade bagels are vegan, whereas store-bought ones might not be (it depends where you buy them; some stores use a spritz of water to give their bagels a sheen, while others use an egg-white glaze to get them shiny).

Now that you've decided to bake your bagels, let's start with a few ground rules about ingredients. First, the flour. I prefer white flour, though I've heard some get good results with a 50/50 white/wheat mix. Bear in mind, though, that wheat flour will make the kneading more labor-intensive. In either case, the white flour you use should be eithr all-purpose or bread flour, and shouldn't be bleached. Unbleached flour will come out nicely white, and bleached flour sacrifices flavor for aesthetics.

Next, consider the yeast. I tend to use dry yeast, and there you have a choice between instant and active dry. There's an important distinction: Instant yeast can be thrown in with the flour and other dry ingredients, and that's the last you have to think about it, while active dry yeast should be proofed first. To proof yeast, measure out the yeast you'll need for the recipe and stir it into a quarter cup of luke-warm water (should be in the 80s fahrenheit on an instant-read thermometer), then wait about 10 minutes. The air should permeate with a bready/beery smell, and the mixture should foam up, like so:

Active Dry yeast, once proofed, should be added in with the wet ingredients. Instant Yeast, as mentioned, should be mixed in with the dry ingredients.

Another important point about yeast: If you don't do your shopping right, the yeast will be the most expensive ingredient in the baking process. This is because many grocery stores only stock packaged yeast, which is one of the biggest rip-offs in modern groceries. Do not buy yeast in packets; the price is marked up to about ten times what it is if you buy in bulk. Either get your yeast in bulk from a health food store or get a big vacuum-sealed sack from CostCo. The following visual aid should prove illustrative:

Bad!

Good!

For this recipe, you'll need
3 1/2 cups of flour (plus some extra for flouring your various work surfaces),
2 teaspoons salt,
1 teaspoon yeast,
2 tablespoons sugar,
1 1/4 cups water,
Oil to grease the baking pan (canola or vegetable oil is best).

Now, there are two essential ways to do this. One is through the use of various machines. The other is by hand. If you've a large enough food processor (should hold 5 cups) I really, really recommend using that. It's easier, it's cleaner, and it makes a better dough. The trick is that dough is a mixture of flour and water. The more flour you use, the more solid and dry it'll be. The more water you use, the more liquid and sticky it'll wind up. Putting more flour in makes it easier to handle, so the temptation when kneading by hand is to use too much flour. The food processor chops at such a speed that it doesn't make a difference; you can use exactly the right amount and wind up with dough of the perfect consistency.

If using a food processor, this is very easy. Add the flour, salt, sugar, and yeast (if using instant yeast) to the bowl. Pulse with the steel blade a couple of times to get everything mixed together. Then, with the processor running, drizzle in the wet ingredients (1 1/4 cups water if using instant yeast, 1 cup of water + the proofed yeast mixture if using active dry) and allow to run until you get a big solid ball, about 30 seconds. The dough should be cohesive and very slightly sticky. Add a touch of flour if it's too wet, add a teaspoon of water if it's too dry, and process until it comes out right. Remove and knead on a floured surface until it's a big rubbery ball.

If working by hand, it's a bit more complicated. Throw the salt, the sugar, the yeast (if instant) and 1 3/4 cups of flour into a mixing bowl. To that, add the wet ingredients and stir with a spoon. Once combined, mix in flour gradually, about 1/2 a cup at a time, not adding more until the last batch has been completely assimilated into the dough. Stop at 3 1/2 cups. The trick with hand-mixing is that eventually it'll become too sticky to handle with a spoon; it'll be one huge sticky mass. Unfortunately, the point at which the dough becomes un-stirrable happens before the point when it becomes kneadable by hand. The trick is to soldier through and stir the damn stuff until it's absolutely impossible to stir any longer; only then should you dump it out and start kneading. Make sure your hands are well-covered in flour before you knead, or you'll end up with fingers coated in gobs of sticky, liquid dough. This is why I recommend getting a food processor. In any case, add flour and knead until it's a rubbery, non-sticky ball.

Whether kneading by hand or mixing in a food processor, the end result should look something like this:

Smooth it out, then put it in a bowl and cover it loosely with a towel to rise.

You've actually got a couple of options here. You can heat an oven to about 100 degrees and throw the bowl in there; this'll help it rise faster, in an hour or less. You can leave it where it is, in which case it'll be done in about two hours. Or you can put it in the refrigerator and let it rise, slowly, in there for about twelve hours. The longer you let it rise, the more chance the yeast will have to develope and the richer the flavor of the end bagels will be. You might consider making the dough the afternoon before, putting it in the fridge, then waking up early to bake your bagels the next morning. In any case, by the end of the first rise your dough should have roughly doubled in bulk, like so:

Take it out and punch it down, then form it back into a ball. Leave it to rest for another ten minutes, covered, on a floured surface.

Now it's time to turn your big lump of dough into smaller, bagel-shaped lumps of dough. Cut it into eight or twelve pieces (I prefer eight, just because it's easier to get them even, though you'll note I failed at that this time around). Role the mini-doughs into balls.

Now take each ball and punch a hole in the middle with your thumb, then work the dough into a roughly even bagel-like shape.

Sprinkle some flour on the doughs, then cover and let them rise for half an hour.

While they're rising, set a pot of water to boiling and pre-heat the oven to 400 degrees. Set out a wire rack on which to (eventually) dry and cool the bagels. I tend to use an oven rack set on top of the sink. Once the bagels are risen and the water is boiling, drop in your bagels four at a time. Keep the heat high enough to maintain a rolling boil. Let the bagels boil a minute on one side, flip them over, boil them a minute on the other side, then remove to the wire rack to drip dry. Repeat until all your bagels have been boiled.

Hopefully by now your oven is up to temperature. Grease a baking sheet with canola oil and place your bagels on the sheet. If you've a spray bottle, like so:

Spritz a little water into the oven at this point to get a steam. Slide in the bagels. In five minutes, spray again. This'll give the bagels a nice sheen, but it's not essential. In any case, the bagels should bake for a total of 20-25 minutes (that's 20-25 from the time you put them in, not from the second spray). Take them out when they're nicely browned. Spray a bit more water on for extra-shiny bagels, then put them back on the wire rack to cool.

Serve when cool enough to eat but still nicely warm. I recommend against toasting, but to each her own. Serve with butter and cream cheese, or Earth Balance and Tofutti if you are so inclined.

If you want non-plain bagels, either fill a plate with the ingredient and mash the bagels in it after boiling, before baking, or mix your ingredient of choice in with the dry ingredients before mixing/kneading. But for the love of Pete, bagels are a savory food; don't put raisins, fruit, chocolate, or other such nonsense into them. In any case, eat and be healthy!

Hey, do you get off on the odd juxtaposition of Disney and Final Fantasy found in Square-Enix's Kingdom Hearts? Well, now you can get off on it in a far more literal way. Suddenly Sora's key-blade makes a lot more sense.

Hey, Justice Scalia's going to be at the law school today. He'll be across the hall from me while I sit in Property. Huh.

When I first moved into this apartment, there was an old lady who lived on the first floor and was moving out. I helped her move by packing the things she wanted and taking the stuff she didn't to the basement. She let me take my pick of whatever she was throwing out, and that's how I got a huge amount of the furniture in my current apartment. It's also how I got a lot of things that I have no idea what I'm going to do with. She was a kindly grandmotherly sort, and could be quite insistent when she gave me things. Hence the various herbal bath supplements in my closet, the big box of transparencies in my drawer, and the huge bottle of fish oil tablets in my refrigerator.

She also gave me about five pounds of frozen chicken parts. I'm not really in the habit of buying meat; I haven't bought any since I moved to New York. But here I was with a huge pile of it filling my freezer. I had hoped my roommate might use it, and I offered it to him on several occasions. No dice. The roommate, apparently, doesn't cook. Ever. I don't think he's even turned used our microwave or our toaster, let alone turned on the stove. I'm kind of curious how he can eat out every meal on a student loan budget, but I suppose we all prioritize our purchases differently. In any case, nine months after moving in, the chicken was still there, adversely possessing my freezer. If I didn't do something soon, the chicken would gain legal title to the contents of my freezer, including, but not limited to, a smattering of frozen bean burritos, a sack of brussels sprouts, and a loaf of Godless Communist brown rice bread. Moreover, I have a very strong moral compulsion against waisting food. Throwing out rotten mushrooms brings a tear to my eye; surely they're not THAT bad! It's already a fungus, so a little extra mold on it isn't the end of the world, right?

In any case, in re: the chicken, something had to be done.

I was watching The Two Towers Friday night. Half-way through is a scene in which Gollum brings Sam and Frodo a pair of dead rabbits, and Sam cooks it into a stew whilst complaining of the lack of potatoes. "Mmmm," thought I, "Potatoes." "Wait!" I added "I've got potatoes! And carrots! And celery and onions and other stewable vegetables! Plus there's that chicken in the freezer!" and so that idea was hatched: Chicken Stew. I would use the chicken bones to make stock and the chicken meat to make stew.

And that's pretty much how I spent my weekend; making stock on Saturday and making stew today. I was reminded of why I don't buy meat; I really, really hate working with it raw. Anyhow, here are some pictures:

One piece of advice: if you're going to make soup/stew/whatever, for Pete's sake make your own stock. I know it takes a long time, but canned stock is quite possibly the worst thing ever. Even just boiling a few carrots, onions, and celery stalks in salted water for a couple of hours produces a better stock (and less salty) than you'll get from a can.

The stew itself was tasty. I threw in whatever I could think of, so there are potatoes, carrots, parsnips, turnips, a couple of peppers, garlic, mushrooms, peas, and okra. Plus the chicken. I also make some biscuits over top of which to spoon the stew, and those were warm and tasty, too. All in all, a weekend well spent. Plus I've got left-over stock to make cabbage soup tomorrow.

Something Positive is currently running ads for Twisted Links, a custom chain mail clothing manufacturer. My guess is that this is for people who are about five notches more into fantasy than I am. A few interesting things about the page:

I note on the front page at the top that you can get your chain mail in a variety of colors, including "various colors of the Neon Spectrum." I had absolutely no desire to own a chainmail garment until I discovered that I could get a cowl in the same color as my highliter. This puts me in the mind of Risk and other war games in which your armies are depicted as brightly colored plastic figurines.

From the bottom of the main page: "Custom Items are available upon request. Prices will vary accordingly. Custom items include, but are not limited to: Earrings, Anklets, Finger Rings, Inlaid Designs, Belts, and Fetish Gear." Fetish Gear seems like a pretty broad category. In fact, it's quite conceivable that every item on the site could be called fetish gear. Nonetheless, I have to wonder if here it means something even beyond what else is on the site, which both frightens me and arouses my curiosity.

Most interesting: For the Ladies, chainmail bikinis, consisting of bra + G-string. First, ouch! I've come to a cautious co-existence with the thong; I've heard the claims that they're more comfortable than standard underpants and though I'm skeptical I'm willing to grant the benefit of the doubt. But if this G-string is, as I suspect, metal links up your butt, I'm afraid I must protest. At long last, have you no sense of decency?

I'll add, though, that if you look at the pricing you can save a lot of money by being small of chest. In fact, if you're an A-cup and willing to go with a large gauge and forgo the pleasure of a chain-link g-string, you can have your own chain mail bra for $10. I have to wonder about the support, though, and whether it might be pretty obvious under shirts (though I suspect it's not meant to be worn under clothing). Still, at that price, even I'm thinking about it. And I could get it in neon yellow, too...

UPDATE: I just noticed the Chainmail Necktie. Now I really want one for On Campus Interview season next fall...

You might, perhaps, have noticed that I have a tendency to the hyperchondriacal. It's a rare list of symptoms that I can read without being absolutely sure that I have the disease in question. There was a time in my younger days when I was pretty certain I had ghonnorhea, despite the inconvenient fact that I hadn't, as yet, engaged in the sort of activities you need to engage in to get ghonnorhea (to wit: Sex). I've been certain I had gangrene on at least three occasions. And I have a nice litany of self-diagnosed psychological problems.

My hypochondria (both by its nature and through its existence) leads me to believe that I'm somewhat paranoid. I received further evidence of this paranoia when I first moved into my apartment. I live in a very old, very sturdy building. It was finished in 1907, and the walls and floors are thick enough that you can barely hear noise through them at all. I live on the third floor of the buiding, which is eight stories in total.

As I lay on my unfamiliar bed on the first night in my new apartment, I began mentally cataloging its various positives and negative. On the plus side, near the subway. On the minus, a somewhat janky stove. On the plus side, nice neighborhood. On the minus, no furniture yet. Eventually I came to the subject of airplanes. I decided that a huge plus for my current residence is that it is probably airplane-jet-engine proof. Even should a jet engine fall out of a plane with a trajectory that puts it on a direct course for my bed, chances are that, between the five stories above me and the building's solid construction, its momentum would be stopped before it crushed me in my sleep. I'd be much more nervous if I were on the sixth or seventh or, God forbid, the eighth floor, but here on the third floor I can sleep the sleep of the just. There won't be any scary seven-foot-tall rabbits in my future.

Hey, so I'm going to be in New York all this summer, working at a non-profit organization in the West Village. My workload should be light compared to when I'm in school, the days will be sunny, and there's plenty of room in my apartment. To that end, I extend an open invitation to all who read this blog: If you'll be visiting the New York City area this summer, please feel free to send me an e-mail (that's zslorpe@gmail.com , once again) and I'll happily put you up for as long as you like. It's a spacious Manhattan apartment, well-situated near two subway lines, and located on the same block as historic Tom's Restaurant (the Seinfeld Cafe). I'm five minutes walk from Columbia University, ten minutes from Central Park, 15-20 minutes by Subway from downtown Manhattan. And the neighborhood itself is both quiet and safe (the second-safest precinct in Manhattan), so you can get a good night's sleep here without a lot of street noise.

Anyhow, anyone's welcome, send an e-mail ahead of time to give me some notice.

This week in Criminal Law we read the Bernard Goetz case. This was a pretty big deal in the late 80s, but I'll summarize it for those who aren't familiar with it.

Bernard Goetz was a white man living in New York City. One day he boarded a subway train and sat down toward the back of the car. A group of four young African-Americans approached him and in some manner requested that he give them money (the nature of the request is somewhat up for debate; Goetz maintains that they were mugging him, while they claim to have simply been panhandling). Goetz responded by standing up, pulling a handgun out of a shoulder harness, and shooting at each of the four men in turn. He hit three of them, while the fourth ran away. Goetz tried to pursue him, but he escaped into the crowd. Goetz then returned and shot the first youth again. The train stopped between stations, and Goetz got out and escaped on the tracks. He turned himself in several days later in New Hampshire. The fourth youth escaped without injury. The second and third youths suffered minor injuries, while the first youth, the one Goetz had shot twice, had his spinal cord severed and was paralyzed. Goetz was charged with four counts of assault with a deadly weapon and four counts of attempted murder.

I've tried to keep the factual summary fairly neutral. The interesting thing about reading this case is that after he turned himself in, Goetz gave a statement to the police which not only makes himself look much, much worse than the neutral statement of facts, but also embelishes facts to make himself look more guilty. I quote from the statement of the case:

"Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol."

"According to Goetz's statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked 'how are you,' to which he replied 'fine'. Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said 'give me five dollars'. Goetz stated that he knew from the smile on Canty's face that they wanted to 'play with me'. Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being 'maimed'."

"Goetz then established 'a pattern of fire,' deciding specifically to fire from left to right. His stated intention at that point was to 'murder [the four youths], to hurt them, to make them suffer as much as possible'. When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot 'tried to run through the crowd [but] they had nowhere to run'. Goetz then turned to his right to 'go after the other two'. One of these two 'tried to run through the wall of the train, but * * * he had nowhere to go'. The other youth (Cabey) 'tried pretending that he wasn't with [the others]' by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been 'taken care of'. Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, 'I said '[you] seem to be all right, here's another'', and he then fired the shot which severed Cabey's spinal cord. Goetz added that 'if I was a little more under self-control * * * I would have put the barrel against his forehead and fired.' He also admitted that 'if I had had more [bullets], I would have shot them again, and again, and again.'"

Goetz's appeal occurred after indictment, before trial. He sought a ruling on jury instructions for self-defense. New York's self-defence statute requires that the force used in self-defense be "reasonable." Goetz argued that this should be a subjective rather than an objective standard. In other words, the question the Jury should be asked shouldn't be, "Would a reasonable person have reacted the way Goetz did in this situation?" but rather, "Was Goetz reacting in a way that he considered reasonable?"

The Court of Appeals shut Goetz down; the reasonableness standard can take into account the experiences of the party claiming self-defense, but it can't be purely subjective. Everyone believes they're behaving reasonably when they commit a crime, and if they don't they plead insanity. Allowing a subjective standard would reduce the reasonableness requirement to a form of words. The reasonableness requirement is there to prevent situations where someone reacts to being punched in the nose by shooting the assailant in the face. It's specifically designed to prevent vigilante justice of the kind performed by Mr. Goetz.

Except it didn't prevent vigilante justice of the kind performed by Mr. Goetz; the case went to trial and the jury acquitted on all counts but one: possession of an unregistered firearm. Goetz paid a fine and served a month in jail, then was released.

So what's Goetzy up to now? Last fall he ran an unsuccessful campaign for New York City Public Advocate. His campaign page/personal web site is still up. Goetz, in case you haven't noticed, is kinda crazy. In addition to running quixotic campaigns for public office, Goetz is apparently both an avid hunter and a vegan, and runs a website extolling both lifestyles (complete with goofy photoshopped pictures of squirrels holding rifles).

You could sort of tell from his statement to police, though, that he's always been a bit unhinged; the testimony from witnesses on the scene makes it apparent that he wasn't nearly the Charles Bronson figure he made himself out to be in his statement. My guess is that he built the incident up in his mind after the fact and fabricated an elaborate Death Wish fantasy, complete with action movie one-liners and a cool detachment from violence. Of course, the alternative is that he's genuinely psychopathic and really would have kept firing if he'd had more bullets.

In either case, if I were to run into him on the subway, I wouldn't ask him for five dollars.

Right now we're having a big admitted students event, complete with receptions, panels, free food lavished on fresh young admittees. In Con Law there was a hoard of admitted students sitting in on the class. Today's readings concern Right to Die. With that as context:

Con Law Professor: Suppose, then, we have a hypothetical college student. His girlfriend just broke up with him, he got a C in a history class, and he's just realized he'll never get into a good law school. So what happens if he decides as a result of this to end his life, and he chooses to stop eating and drinking?

On-Call Student: ... Well, it's better than going to law school.

Well, not really, but nonetheless: It's snowing, on April 5, which is well past the Statute of Limitations for Snow, particularly in light of last week's consistent mid-to-high 60s weather. This lends further evidence to my theory that the weather is determined by my suit-wearing schedule. The weather always takes a turn for the worse just when I need to go out in nice clothes, as tonight when I'll be making Moot Court oral arguments. My theory is that this will stop as soon as I buy a trenchcoat to protect my suit from unauthorized aquatic intrusion.

Anyhow, Moot Court orals tonight. Wheeeee. Oral Arguments entale presenting the case I made in my various moot court briefs before a panel of three Celebrity Guest Judges (Columbia Law alumni). The trick is that it's not just a speech; it's a back-and-forth with the judges. You talk and they can interrupt at any time to ask questions. It is, I have heard, a fifteen minute grilling in which you are judged on how well you respond to their questions and how much of your actual argument you can squeeze in between interruptions. Moreover, there is the master-servant social dichotomy; judges are permitted to interrupt you at any time, to talk over you, whatever. You are required to listen quietly until the judge is done. You're expected to treat the judges with respect and decorum. Judges are under no such obligation with respect to you, and in fact see it as part of the game of Moot Court to try to anger you into a misstep, be it through giving you a hard time, justified or not, about your arguments or through a more generalized disrespect.

I don't mind this per se; the social dichotomy is a reproduction of actual dealings with judges. What's annoying is that Moot Court judges apparently feel a positive obligation to take this to the extreme. One frequent Columbia Moot Court judge introduces himself by saying, "Hello, my name is _______, and I'm here to make your life hell for the next fifteen minutes."

So that's what I'll be doing this evening. Being berated by judges in my soggy suit. I have to say that, at this point, taking certain people's suggestion of interpreting this as Mute Court and delivering my oral arguments in mime is highly tempting. But how do you mime "Authorization to access a wireless network?"

The last vestiges of my time as a Berkeley student have been swept away and I can now consider myself a proper alumnus: Fifteen months after I took my last final at Berkeley, Cal's tech services has finally de-activated my UCLink E-mail account. Those who seek electronic audience with me, Molten Boron, Molten Boron to my friends, can no longer reach me at zslorpe@berkeley.edu. Nor can you reach me at zslorpe@uclink.berkeley.edu. Direct all future inquiries to zslorpe@gmail.com. Again, this is for those who are trying to contact Molten Boron. Formerly of Berkeley. Yes, that Molten Boron. The one who's google-bombing his name now. To re-iterate: zslorpe@berkeley.edu and zslorpe@uclink.berkeley.edu : no longer operative. zslorpe@gmail.com is the name of the game now.

My attention was recently drawn to Matt Holohan's Scary Spider Adventure. I made the foolish mistake of clicking a link to some pictures of nasty Floridian banana spiders in the comments. Eeeeugh. I'm now in full Defcon-1 Spider Alert Mode. I'm pacing about the apartment nervously, inspecting nooks for arachnoid invasion, jumping when I brush my arm against the door out of fear that it might be a spider.

I hate spiders. I can't stand them in any context. Without a diagnosis, I believe I can make a persuasive case that I am a full-on arachnophobe. Many people claim to have a phobia, but are really exaggerating. A phobia is an irrational fear of something. A momentary panic attack when you look over the ledge of a 30 story building isn't a sign of acrophobia; you're expressing a very rational fear of falling from a height that is certain to seal your doom. Having that same panic attack when you stand on a footstool, however, is probably a good indication that you're acrophobic.

I think I'm arachnophobic because I have absolutely no problem with big scary insects. A gross, hairy bug has absolutely no effect on me, and I can inspect one with detached bemusement. But a tiny spider just sets me off. I'll jump, I'll rub myself, I'll be completely unable to relax for hours after I see one. I doubt I'll get any sleep tonight because my mind will create imaginary spiders crawling all over me, or waiting on the ceiling in silence to pounce.

This is another reason why I'm not such a great exemplar of masculinity. Under traditional male gender roles, men are the official killer of bugs, spiders, and other gross things. I'm utterly useless about this. If it's an insect, I take a laissez-faire attitude. "Who cares?" I say, "If you want it dead, kill it yourself. I'll not be your insect executioner. Your insectiocutioner. Heh. That's clever." On the other hand, if we're talking a spider invasion, I have no moral qualms about killing it. In criminal law, there's such a thing as justifiable homicide. One of the justifications, commonly accepted, for homicide is self-defense. Well, it's a well known fact that spiders seek the utter destruction of the human race in general, and me in particular. The very existence of a spider is prima facie evidence of its malicious intent and of the imminent threat that it presents to my life. This belief is entirely reasonable, and I would act on it if I could exert any kind of rational control of my body upon learning that there's a spider about.

But I can't. I was in a shower once and noticed a spider crawling on the curtain. I leaped three feet and climbed up on the corner of the bath to get away from it. After ten minutes there carefully watching it (and craning my neck to look for its sinister cohorts who were no doubt waiting to pounce when I let my guard down) I cautiously made my way to the shower head and turned it on the spider. After knocking it down and pushing it to the drain, I darted from the shower and made my way, speedily yet gingerly and still soaking wet, into the (fortunately unoccupied) living room, where I was safe, if in a somewhat indecent state. I eventually made my way back to the bathroom for a quick hit-and-run operation to grab my towel. After carefull inspection to make sure it was spider free, I dried myself. It took fully half an hour to calm myself down, and I left the bathroom door locked until my roommate came home and took care of the spider, which as it turns out was slightly smaller than the nail on my little finger.

So. Spiders: Can't stand them. I have no problem if the given little arthropod has 6 legs, or 10 legs, or 100 legs, but if it has 8 legs it scares the living fuck out of me. So this means that Hawaii is added to my List of Places I Can Never Go, along with Florida and Iraq.

I consider myself something of a geek (well, a lot of a geek) and as a result I'm interested in the classification geeks and the history of geekdom. Where did we come from? Where are we going? These are the questions that pound through my brain when I ought to be studying. Like now!

Let's start by defining terms. I think of a geek as somebody who has at least one hobby with which they have become unreasonably obsessed. This hobby should either be 1. well outside the mainstream, or 2. an unusual variant on a mainstream activity. The hallmarks of a geekly activity are that it should be introverted and easily susceptible to obsessive-compulsive behavior. You might discuss your hobby with fellow geeks, but the majority of the effort you put into the hobby is done by yourself. The obsessive-compulsive aspect can be satisfied in a number of ways, but generally through either an emphasis on collection and preservation or on the keeping of arcane statistics.

It's often tempting, when looking at a social phenomenon, to assume that it is some sort of novelty. Every generation thinks that they invented sex, and every generation thinks that they were the first geeks, which is why it's always surprising to read about people engaging in what can only be called geeky behavior fifty, a hundred, two hundred years ago. What did geeks do before mass-market geek culture, before computers, video games, comic books, and action figures? Lots of things, just things you might not have made the geek connection to.

I think the best example of a pre-computer geek hobby is stamp collecting. It involves sitting quietly away from anyone else, it emphasizes maintaining a complete and ever-expanding collection, and it encourages meticulous preservation. I always had a tough time figuring out what could possibly interest anyone in stamp collecting. It's so boring and there's no apparent reward. But then I realized that the appeal is the same as that of Yu-Gi-Oh or Magic cards, the obsessive need to collect something, regardless of what it is. This is what people collected before there were comic books or action figures. When you read about some historical figure who enjoyed collecting stamps, you can say to yourself "Ah-ha! One of history's many geeks!" (Side note: Franklin Delano Roosevelt was a stamp collector; Teddy Roosevelt wasn't. This fits pretty well into our images of the two; TR the extroverted, outdoorsy hunter, going on safaris on the savanah. He had a life! He had the great outdoors! While FDR, stricken with polio and confined to a wheel-chair, cultivated an interest in boring things like stamp collecting and statistics.) It's hard to understand the existence of the National Postal Museum until you see it as a memorial to geekdom past.

Another interesting geekly activity: Baseball statistics. One day in middle school my gym teacher took the class out to the field and taught us how to mark down a baseball game. If you've never done this, you get a sheet that you fill out with the batting roster for the two teams. Next to the roster are a series of boxes. Each time a player comes up to bat, you fill out the box next to his name to indicated what happened, for instance a k denotes a strike out. At the time I had no idea why we were learning this. None of our other sports involved any record-keeping component beyond scoring, but here we were detailing every aspect of the game without doing it in an interesting narrative way.

The answer is that a culture built up around baseball stats in a bygone era, leading to a well-developed system of tracking baseball stats. You use those sheets to record field data, then add it to your collection to crunch out statistics for players like batting average and runs batted in. The coach taught us this because he was, himself, an old geek, but one who's geeky hobby was perhaps no longer recognized as such. With professional league statisticians tracking all the games and computers to crunch the numbers, there's just no need for amateur record-keeping anymore. That doesn't mean he or the other old baseball statistics geeks are going to stop, it just means that the whole hobby has acquired an air of "what's the point, exactly?" which makes it hard to pass on to another generation.

And I have to say, baseball statistics is a classic geek hobby. It takes an activity that is outdoorsy, social, and fun, going to a baseball game, then impedes the social aspect (it's harder to chat when you have to make sure you catch all the plays to record them) moves the majority of the fun indoors (when you compile your numbers later) and transforms the fun from the visceral thrill of watching a sport being played to the subdued, abstract thrill of translating human actions into numbers and playing around with them, perhaps making a graph if you're so inclined. And baseball statistics lends itself to the primary extroverted aspect of geekdom: Arguing with other geeks about the minutiae of the hobby. Is RBI a valuable statistic, or is it really just a reflection of management decisions? How good a measure of batting ability is the batting average? Is a player with a better On Base Percentage a better batter than one with a higher batting average? Mantle vs. DiMaggio was an earlier generation's Kirk vs. Picard.

So, any other candidates for geekdoms past? Other activities that make no sense today but suddenly do when obsessive collecting/compilation is seen as an end in and of itself? I'm interested to hear your thoughts.

There's a board game I quite enjoy playing, The Lord of the Rings: The Confrontation. It's a quick two-player game that plays a lot like Stratego, but is a tad more complex and interesting. Fantasy Flight Games, the company that makes the game, was mostly focused on using the Lord of the Rings license for the main Lord of the Rings board game and War of the Ring, but in the height of excitement for the series that came with the new movies they released some throw-away games, like The Search and The Confrontation. They charged $50+ for the games they cared about, and around $20 for the throw-aways.

As it turned out, The Confrontation was, according to most strategy board game afficianados, a better game than the main Lord of the Rings game. The main game wasn't bad, but The Confrontation was better designed and more tightly constructed. Plus it was cheap. The company sold out of The Confrontation and, after several new printings, decided to release a new version: The Lord of the Rings: The Confrontation, Deluxe Edition. What distinguishes the Deluxe Edition from the standard edition? The box is larger (though the components are mostly the same size), making it less portable. There are a few additional components, but nothing to really change the game, just a few extra characters and an extra power card for each player. The main difference is that the Deluxe Edition costs $40, while the regular edition costs $20. Also, the Deluxe Edition is available for purchase, while the regular edition is out of print.

This led me to a quandary. I quite like The Confrontation, but I don't really like it $40-worth. But the original version is unavailable. Then I found Thought Hammer, a board game store based in Austin, Texas that has a great selection, very reasonable prices, and ships anywhere in the country. They still carried the standard edition, so I leapt on it and ordered a copy.

My order arrived today, and upon opening the box I discovered that they had sent the Deluxe Edition. I checked the manifest; they had listed the product code for the standard version. I checked the order that they e-mailed me. Still the standard version. I checked my bill. I'd only been charged for the standard edition, but I'd been given the Deluxe version.

So the question is, do I report this and possibly pay the extra money for the Deluxe version (I assume that, if they wanted to correct the mistake, they'd give me a choice of keeping and paying or exchanging for the standard edition, and at this point I'd rather just keep the Deluxe version and pay extra) or do I just take it as a windfall and stay quiet?

This actually reminds me of another ethical quandary that this game presented to me. It actually involves playing board games rather than buying them. I was playing The Confrontation with a friend. It was very friendly and nobody was taking the game seriously at all. We got to the end and were down to two pieces, and those pieces had gotten into a fight. My opponent had to choose one of seven cards to play, and I knew what cards she had. Six of those cards would result in me winning the battle and the game. If she played the other remaining card, however, she would escape the battle and set the pieces up in a way such that she would win and there would be nothing I could do about it. I saw what she could do to win, but she didn't. The game slowed down as she examined her options, read the card text, thought hard, and eventually said "I don't think there's anything I can do to win."

A further wrinkle: Based on the situation and her musings, it became apparent that she didn't quite understand how one of the pieces worked, and this was the key to the winning strategy. But if her mistake was pointed out, it would be functionally equivalent to telling her how to win. Bear in mind that she had played this game dozens of times before, and was in fact the game's owner, so not telling her the rules wouldn't have the character of picking on a newbie who had never played before.

So my question is: What is your obligation in these circumstances? It's a friendly game, no pressure. On the one hand, it's disingenuous and annoying to sit back and say nothing. On the other hand, it sort of defeats the point of a strategy board game if you're telling your opponent how to win. It's like explaining to your opponent how they can put you into checkmate in chess as you're playing the game. And then there's the complicating issue of the rules. I generally feel that with new players you're under an obligation to correct any mistakes about the rules and let them go back on foolish decisions that betray a lack of understanding of the game. But what if a more experienced player makes a mistake based on a misreading of a card, and you notice that they're making a mistake? Are you obliged to correct them, if it functionally means telling them "look at this rule more carefully: It will explain how to beat me?"

In the end, I took the middle ground of dropping vague hints and suggestions. "I think there's a way for you to win," that sort of thing. With respect to the rules, I told that she should "read the cards more closely." In the end, she didn't figure it out, made a bad decision, and I won. I felt bad about winning, though, and she seemed a bit annoyed. She tried to argue that we should call it a draw for the club record, and I agreed to that, but the President put it down as a win for me. It's not the end of the world or anything, she and I are still good friends. Nonetheless, I wonder if I could have handled it better. What do y'all think?