kate_nepveu: portion of map from browser-based game (Fallen London)


Back when the news that Ben Affleck was going to play Batman broke, I said elsewhere,

The thing is, I don't really care about casting for Batman because Batman is fundamentally a boring character. All he is, is a vehicle for manpain and an opportunity for more interesting people to aggregate around him. (Usually people who deserve a better protagonist.)

Superman's boring too. So there.

*drops mic, walks offstage*

And I stand by that. But [livejournal.com profile] glvalentine's Strange Horizons column Ten Worlds About Ben Affleck's Batman is still awesome with awesomesauce on top. (Why aren't we in world #5?)


Know anyone starting law school or thinking about it? Recommend to them A Student's Guide to Law School, freshly-published and written by a co-worker and one of the smarter people and better attorneys I know (and I know a lot of smart people and good attorneys).


A writer at the A.V. Club is dismayed to revisit the first Xanth book (because it may not be obvious if you're not familiar with Piers Anthony's work: trigger warning for discussions of pedophilia):

Here’s how this article was supposed to go down: As a kid, I lived in Florida. Back then I loved the books of Piers Anthony . . . . For this installment of Memory Wipe, I was going to reread A Spell For Chameleon . . . . Then, in poignant prose, I would revisit the magic of my own Floridian childhood, even though that childhood was actually pretty fucked up, but maybe not quite as fucked up as it seemed at the time. The big takeaway: Thanks, Piers Anthony, for the swell book, not mention giving me a tidy epiphany about how fantasy, geography, and nostalgia overlap in the hazy mists of reminiscence.

Instead, this happened: I reread A Spell For Chameleon, and during those excruciating hours all I could think about was what a sad, misogynistic piece of shit it is.

It seems like realizing the awfulness of Piers Anthony is a rite of passage among people who read SFF when young, so I offer it to you all for the sympathetic wince/cathartic rant factor.

Also because of this:

Ultimately, Anthony is the worst kind of misogynist: one who defends his offensive views by saying, in essence, how could he possibly hate women if he’s drooling over them all the time?

I'm not convinced that that's the "worst" kind, but it is a particularly infuriating kind, and it strikes me as relevant to sexual harassment. And that is on my mind because of recent revelations of sexual harassment by Bora Zivkovic, a very prominent man in the science blogging community (context). The most recent report (with links back to others) is by Kathleen Raven. Among other things, this prompted a massive Twitter conversation of people sharing personal tales of self-doubt caused by even much milder forms of harassment (on Storify, or try #ripplesofdoubt if you hate Storify for long things the way I do). Difficult stuff, but worth reading if consistent with your well-being.

(To be clear: Bora is not, at present, using this defense, though I am morally certain that someone somewhere has offered it on his behalf. Reading these links in the same day merely made an association that seemed a useful transition.)


Fallen London players, follow this link for a tiny gift from a Rubbery Man (one not generally available since 2010, can you believe this game has been around that long?), and check out your Lodgings for some seasonal content.


I think about unfollowing Elementary's writers on Twitter every Thursday, when they live-tweet the show that I don't have time to watch. But it doesn't seem worth the effort, and they do things like last week's "feud" with the writers of Sleepy Hollow, which was adorable and hilarious. And then this afternoon they started in with the knock-knock jokes and I gave up and followed @sleepywriters too just so I didn't miss anything . . .

(I have not seen Sleepy Hollow; I appreciate the comparisons everyone's making between it and Elementary regarding the dynamics of the lead pairs, but I've given up trying to watch anything but Elementary and Face Off, and I'm also a little dubious about the mythological elements that [livejournal.com profile] abigail_n points out. As for SHIELD and Korra, I'm letting those scroll off the DVR, and if someone tells me they get to be worth watching, I will pick them up from that point.)


A Dark Room is a really neat minimalist web game about discovery and exploration. I hesitate to say too much about it because of those themes, but it's not too long or demanding and has a definite end, and the minimalism works very well for it. (You should run it in a browser tab that can stay open while you're away from your computer.)

ETA: now some spoilers in comments.

ETA 2013-08: apparently there are some content differences in the iOS app which sound very much not my thing.


‘12 Years a Slave,’ ‘Mother of George,’ and the aesthetic politics of filming black skin, a fascinating article at the Washington Post about the racism embedded in the very "technology and grammar of cinema and photography."

kate_nepveu: sleeping cat carved in brown wood (Default)

Three quick comments I found interesting:

  • Dahlia Lithwick on the difference between judicial activism and judging; also on how "when your citizens and/or their Legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what's constitutional."
  • Kenji Yoshino on the potential wider legal consequences of the decision. I note that the decision explicitly refused to make immutability a requirement of traits deserving the highest legal protection, as Yoshino argued in Covering.

    (Also, it is amusing to contrast his and Lithwick's characterizations of the way the decision is written.)

  • The Slacktivist considers people who are sincerely opposed to same-sex marriage for religious reasons and wonders "why these friends and brothers and sisters of mine think that such theological arguments can or should be persuasive to those who don't share our religious perspective."
kate_nepveu: scales of justice, carved in bronze (scales of justice)

As everyone has said, California's highest court today ruled that "the designation of marriage" must be made "available both to opposite-sex and same-sex couples." I am so happy about this, though my happiness must pale besides that of those more directly affected by the decision.

That decision, by the way, is 172 pages: 121 pages of majority opinion (including 73 footnotes), 40 pages of concurring and dissenting opinions, and 11 pages of administrative stuff (PDF, 500KB). I've only had time to skim the majority opinion (and I am, alas, not the sharpest knife in the drawer at the moment thanks to sleep deprivation), but the only word that comes to mind is "exhaustive." Which—to go off on a tangent—interests me, because there are several different potential audiences for all this exhaustive discourse, and talking to multiple audiences is a tough thing to do.

legal natter )

Have any of the non-lawyers here ventured into the decision itself? What did you think?

kate_nepveu: (con't from comment field) "that makes glass with distortions. --Audre Lorde" (International Blog Against Racism Week)

In Covering: The Hidden Assault on Our Civil Rights, Kenji Yoshino argues for a new way of looking at discrimination and civil rights. As the title indicates, this centers on the concept of covering, or downplaying a disfavored trait to blend in:

Famous examples of covering abound. Ramón Estévez covered his ethnicity when he changed his name to Martin Sheen, as did Krishna Bhanji when he changed his name to Ben Kingsley. Margaret Thatcher covered her status as a woman when she trained with a voice coach to lower the timbre of her voice. Long after they came out as lesbians, Rosie O'Donnell and Mary Cheney still covered, keeping their same-sex partners out of the public eye. Issur Danielovitch Demsky covered his Judaism when he became Kirk Douglas, as did Joseph Levitch when he became Jerry Lewis. Franklin Delano Roosevelt covered his disability by ensuring his wheelchair was always hidden behind a desk before his Cabinet entered.

The central argument of the book is that covering is an assault on civil rights because it is an assault on autonomy. If one has a right to be something, one has the right to do the things that one feels are part of that identity. Otherwise, "the demand to cover . . . is the symbolic heartland of inequality—what reassures one group of its superiority to another." In other words, though assimiliation can be necessary for peaceful co-existence, its dark side also should be recognized.

The book is a blend of memoir, history, and legal analysis. It begins with a chapter of memoir, charting the author's "struggle to arrive at a gay identity." Yoshino did undergraduate and graduate work in literature before switching law when he accepted his sexuality—because, he writes, "A gay poet is vulnerable in profession as well as person"—and all of the autobiographical portions of the book are elegant and precise. And in the later chapters Yoshino moves between memoir and history or legal analysis with a remarkable fluidity, never jarring me in the transition.

After the context-setting opening chapter, the book divides into three parts. The first is an examination of gay history, which is itself divided into three parts: conversion, or attempts to change sexual orientation; passing, or attempts to hide sexual orientation; and covering, or attempts not to flaunt sexual orientation. Each section emphasizes how it is still a current problem. Conversion lives in the idea that homosexuality is "contagious" and therefore children need to be protected from the promotion of homosexuality in schools, and passing in the U.S. military's "don't ask, don't tell" policy. And both can co-exist with covering, such as in custody cases:

[When denying] custody to a lesbian mother in 1990, a Louisiana appellate court cited "open, indiscreet displays of affection beyond mere friendship . . . where the child is of an age where gender identity is being formed." If acceptable sexuality for same-sex couples is limited to the appearance of friendship, then the expectations for parents are clearly not orientation-neutral.

Notice as well why such covering is required—parental flaunting is dangerous because it could convert a child whose "gender identity is being formed." All three demands for assimilation are simultaneously in play—because children must not be converted, parents must pass to their children and cover to the courts. The shifts from conversion to passing to covering . . . are shifts in emphasis.

The book then considers covering as applied to race and sex, drawing its examples mostly from the employment context. One of the new wrinkles it examines is reverse covering, particularly with regard to women. For most non-dominant groups, the pressure to reverse cover comes from other group members. Women, however, are pressured to cover and reverse cover at the same time and by the same outside group (men), that is, "to be 'masculine' enough to be respected as workers, but also 'feminine' enough to be respected as women."

(Though the book focuses on groups currently protected by civil rights law, because it's written by a law professor, the book takes care to note that everyone covers in ways small and large: "the mainstream is a myth. . . . All of us struggle for self-expression; we all have covered selves.")

Finally, in the shortest section, the book looks at models of civil rights law. It considers two areas in which the idea of accommodation is supposed to be recognized, religion and disability, and examines the pressures towards assimilation within those areas of law. It then argues for a new model of civil rights:

  • The law right now tends to prohibit only discrimination based on immutable traits. This is misguided: the question should not be whether a person can change, but whether the person should be made to change.
  • One way the law can do this is by focusing on common liberties/fundamental rights, rather than on whether group X needs additional protection. This is partly because courts are more likely to be comfortable with such a formulation, and partly because the group X formulation brings up the question of what's essential to being part of group X, which is dangerously near stereotyping.
  • The law is limited in effectiveness and appropriateness when it comes to covering:

    When I hesitate before engaging in a public display of same-sex affection, I am not thinking of the state or my employer, but of the strangers around me and my own internal censor. And while I am often tempted to sue myself, this is not my healthiest impulse.

    Instead, civil rights law should be part of broader attempts to view ourselves and others with compassion and understanding.

On the whole, I think this is a well-written, useful, and accessible book. It's true that unless carefully deployed, the idea of covering could reinforce stereotypes. As a colleague of Yoshino's puts it, "One way minorities break stereotypes is by acting against them. If every time they do so, people assume they are 'covering' some essential stereotypical identity, the stereotypes will never go away." For this reason, the book attempts to emphasize individual autonomy and authenticity, rejecting demands to reverse cover as well as cover; I think this bears repeating, because it strikes me as the kind of point likely to get lost in general discussions. Also, because describing solutions is harder than describing problems, the final section feels a bit slight (and also strikes me as having somewhat more jargon than the prior sections). However, by targeting a general audience, the book necessarily limits the amount of legal implementation details it can offer.

The idea that everyone covers immediately resonated with me, and I have begun thinking about my own covering and whether all of it is necessary or useful. I hope that when others recognize the concept, they will do the same, and in the process gain awareness of and empathy for those who are pressured to cover without good reason.

(The book's preface, which functions as a short summary, can be read online, as can the scholarly law article which originated the concept (choose "View as PDF" from this Yale Law Journal page).)

(ETA: see also a long New York Times article by Yoshino, The Pressure to Cover, which functions as a long (5,000 words) summary. Thanks to [livejournal.com profile] ckd for the link.)

[Cross-posted to my booklog.]

kate_nepveu: sleeping cat carved in brown wood (Default)

[Written Thursday night when Internet-less.]

So there I was, in a hotel room surfing TV channels for acceptable background noise, and there was an episode of Supernatural, the show which it seems like half my reading list watches. Heck, why not?

Of course I would land on an episode that required stupid legal stuff for its plot—and I assure you, it was very stupid. spoilers )

That said, I definitely noted some appealing bits about the show, though I doubt I'll watch, partly because I'm not much for spooky and partly because I just don't watch TV often. I really liked the shot of the pivoting cell doors when they first get into prison, and the actors playing the Winchester brothers are watchable (though it seemed to me that Dean stole this episode something awful). And I didn't foresee the twist about 3/4 through, though I lacked the context to know that there needed to be a twist, if that makes sense. I did catch some of the significant sibling interaction, thanks to skimming spoiler posts, which I suspect kept the episode from being just filler?

Anyway: didn't suck, not highly motivated to watch more (I'll be looking for people's spoiler posts about the next episode based on the preview, though).

kate_nepveu: sleeping cat carved in brown wood (Default)

This morning, I was in Rochester to argue two cases. When there are a lot of cases on the calendar before mine, I do my best to pay attention to them: it keeps me awake, it's educational on a number of levels, and I'm not going to be able to concentrate on my own case during other people's arguments (I prepare ferociously ahead of time instead). Today, I was rewarded with an interesting set of facts, which I believe went something like this:

Criminal conviction for drug possession. Defendant had jumped out of a still-running car and run through a series of backyards. He was eventually arrested some distance away (I did not hear any of the distances). A bag of drugs was found on the ground near a fence, which defendant had jumped over; the jumping was the only time the pursuing officer lost sight of defendant. It was a cold snowy day, and there were only two sets of footprints in the backyard, defendant's and the officer's. The bag was warm to the touch.

Is that sufficient evidence to convict defendant of possession? Recall that possession must be proved beyond a reasonable doubt.

(I think one of the justices said it would make an interesting law school test question.)

Then when I got home, I found myself with another circumstantial evidence question, which amused me. The faucet in the back wall of the house was on. A quick call to Chad confirmed that he hadn't left the water running for some reason, so I went out and turned it off. The faucet turned easily, and there were pieces of icicles on the ground around it. I immediately concluded that a falling icicle had hit the faucet in just the right way to turn it on—which is perhaps somewhat more improbable than the case I heard this morning, but since the stakes are so much lower, I am perfectly happy to accept it.

Do you all have any interesting examples of circumstantial evidence? Or want to weigh in on these examples?

(Note to self: find a "lawyerly" icon.)

kate_nepveu: sleeping cat carved in brown wood (Default)

I am strongly considering writing a "you may not discuss copyright unless you can answer these questions correctly" thing—maybe hand-roll a quiz on steelypips, maybe just write it out here, I don't know.

I know there are copyright myth and FAQ pages out there, and I'll be looking at those, but I'd also like you all to tell me what particular errors you see come up a lot during discussion. Off the top of my head, there are the ones I can think of:

  • Whether you can copyright:
    • ideas
    • characters
    • titles
    • images
  • Registration of copyrights:
    • whether you have a valid copyright without registering
    • what it does
    • mailing your document to yourself
  • It automatically is/isn't fair use if:
    • money is being made
    • money isn't being made
    • credit is given
  • What fair use is
  • What rights are encompassed by copyright
    • Especially basing works on other works
  • Defending copyright
  • When copyrights expire

I know I thought of more while trying to fall asleep last night, but I can't think of them at the moment, and the dog is demanding her morning walk.

I'm also contemplating an "advanced" or "so you want to call yourself an expert" section, but that might be more trouble and snark than it's worth, since I am not an expert.

The plan for this to be primarily focused on text, but [livejournal.com profile] telophase, can you link me your thing about copyright for DeviantArt? And do you all think it's worth delving into the area of music—performances, covers, and so forth?

So, tell me: what else should people be required to understand before they discuss copyright?

kate_nepveu: Hakkai from front with hand in hair and small smile (Saiyuki (Hakkai))

I'm almost back to normal, health-wise (unlike Chad), but work has been kicking my ass this week (I want to write about a minor thing that's contributing to that, reader expectations, but I don't know when). Have a link dump instead.

  • Slate article about pretending to be a lobbyist. My reaction was, perhaps unusually, pleasure at how helpful the offices she visited were. I spent a year working for a U.S. Representative, and it's nice to see that my experience wasn't atypical (I don't think I had any meetings like that personally, but I remember seeing similar discussions).
  • It's Saiyuki week and I don't have time to re-read or do an art post or anything. Wah. I console myself with a procrastinatory Hakkai icon, which pleases me quite inordinately.
  • My law review article on special verdicts in criminal trials has been cited by an actual court, the Third Circuit! Eleven page PDF, page 9, footnote 2. I hoped, when I wrote the thing, that it would be a useful resource for practitioners, and so I am very chuffed that at least one person found it worth referencing.
  • New anti-spam plugins for Movable Type 3.2: HM Passphrase, which looks like an accessible "prove you're human" test; and Blacklist32, which lets the old plugin MT-Blacklist run alongside 3.2's built-in SpamLookup.

Finally, I've been in the same room as a lot of basketball games this week, and I'd like to say "Go, UAlbany!" The #16 Great Danes led #1 seed Connecticut by twelve in the second half before they ran out of steam and Connecticut woke up. It was a heck of a fun game until then.

Law and SF

Jan. 3rd, 2006 09:21 pm
kate_nepveu: sleeping cat carved in brown wood (Default)

Quite a while ago, Chad and I were talking and noted the apparent lack of law in science fiction. There's technothrillers, and military sf, and even some medical sf (though not much these days? I'm only interested in the subgenre insofar as the Sector General stories fall in it, so I don't keep track), but there doesn't seem to an equivalent to the legal thriller, Grisham and Turow and such. The only books I'm aware of are John G. Hemry's lawyer-in-spaaaace books (A Just Determination, Burden of Proof, Rule of Evidence), and even those appear to be as much military sf as anything. (I haven't read them; I'm not much interested in military sf. A couple of people have said good things about them, though.)

I'm not really wanting to read legal thrillers in sf settings, mind, for much the same reason that I don't like watching Law and Order—too much like work. But their absence struck me as possibly interesting. Any thoughts on why the legal thriller isn't found in sf settings? (Or fantasy ones, for that matter.)

Minor disclaimer: If interesting things are said, I may suggest this as a panel topic for Boskone.

kate_nepveu: sleeping cat carved in brown wood (Default)

Scrivener's Error has some advice for new law students, which I largely agree with—particularly the "foundational course" advice, because boy do I regret not taking Federal Courts or Administrative Law, on the naive theory that, hey, I'm not clerking, I won't need them! Ummm, no. (I haven't yet missed taking Business Organizations or Bankruptcy, but I imagine it's only a matter of time.) I'd also add Wills, Trusts, and Estates to the list of things one should take, and give Evidence a bullet point all of its own just for emphasis—both fundamental, and I think they'd be hell to learn piecemeal or for the first time during bar review.

Two more pieces of advice: (1) Have something outside of law school and hang onto it, otherwise law school will eat your life, especially during your first year, which is Bad. (2) It's traditional to try and do way too much the first time that you're allowed to pick your own classes. It's probably a mistake everyone needs to make for themselves, but be aware of the tendency.

kate_nepveu: sleeping cat carved in brown wood (Default)

In case you were wondering, Dred Scott didn't say "that the Constitution allowed slavery because of personal property rights," when "That's a personal opinion. That's not what the Constitution says."

In 1856 the Constitution said that slavery was legal, as it had from the beginning. Article I, section 2, paragraph 3, excluded slaves from being fully counted in the census (they were counted as "three fifths of all other Persons"), and section 9 provided that Congress couldn't prohibit importing slaves until 1808. Not all of the Constitution's drafters approved of slavery, but they couldn't get the votes to outlaw it, and so it is undisputed by people with, you know, actual brains that prior to the Thirteenth Amendment, slavery was constitutional.

I was going to write up a post on what Dred Scott did say (some cases, I suggest people read if they want to know what they say, but I've read novels shorter than Dred Scott), but Professor Balkin has beaten me to it:

The problem with Dred Scott is that the Court reached out to decide something completely unnecessary, that blacks couldn't ever be citizens, and it also held that in order to treat southern whites equally with northern whites, they had to have the right under the Due Process Clause to bring their property (slaves) into federal territories, which meant that the federal government couldn't ban slavery there.

That last is a reference to the Missouri Compromise, which some of you may remember from high school history.

Okay, two more comments. One, Bush went on to say, "The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America." (My emphasis.) Excuse me?

Two, Paperweight argues that this statement is actually code for "I will appoint judges who will overturn Roe v. Wade." (Via Political Animal.) I wish I could say I was surprised.

kate_nepveu: sleeping cat carved in brown wood (Default)

Babies this week: a co-worker's first, early, and another co-worker's third, also early. My cousin's first was last week, also early. Just one left of the end February/early March due dates, my friend, though as I think she was having the easiest time of her pregnancy, I suppose it's not unreasonable.

[Edit: actually, my friend's baby arrived Saturday night, I just didn't know it until now. So no Leap Year babies in this crop, and no late ones either.]

Illnesses this week: Chad: rather sick. Me: feverish and tired for most of the week, but nothing else, yet. *crosses fingers*

Vanity this week: gave up on growing out my hair and got it cut yesterday. I'm currently considering whether I dislike it enough to get it cut again now; I think not, but just barely. Also bought a new suit—yes, I know, another, that's the fourth this year, but it was only $60 and it doesn't need alterations. I think my wardrobe's sufficiently stocked now, though.

Dog this week: best game ever: take one (1) favorite toy. Wrap in one (1) large towel. Knot ends. Give to dog, let fun commence. (Be sure not to knot too tightly, or else the dog will just rip the towel fabric rather than dig at and toss the towel around until it comes loose.)

Food this week: cheese lasagna. Mmmm, cheese, my Platonic ideal of lasagna. And very easy, too, especially if one uses (two 27 oz. jars of) pre-made sauce and Barilla no-boil noodles. Notes to self: don't bother slicing the mozzarella, just buy a couple of bags of shredded. Don't worry if the layers come up past the top of the pan, the grated (not shredded!) parmesan won't stick to the foil.

Movies this week: Lost in Translation. Mostly Chad has said what I would, but a couple of extra comments:

  • Opening credits consisting solely of a shot of Scarlett Johansson's butt in translucent panties? Strange.
  • Despite that, this was an incredibly lame R. The rating claimed to be for "some sexual content;" the movie featured one misunderstood prostitute, played for (awkward, uncomfortable) laughs and no real skin, and one strip-club dancer with three seconds of breast, and that was it. The ratings system is seriously screwed up, especially considering that The Passion of the Christ avoided an NC-17, seemingly without cuts.
  • I guess I'm just a narrative junkie, because I prefer to know that something happened in a movie. And to know what that was.

Public service announcement of the week: if you are linking to the New York Times, try putting the URL into this weblog-safe link generator. It won't expire, and you won't need a login, either. (The links generated are from the RSS feeds.)

Same-sex marriage news this week: unfortunately, this article about the latest developments regarding New Paltz isn't on the RSS feed for some reason. Offered without comment, because of its connection with my professional life.

Footnote of the week: the very, very last one (just hit end) in this decision, via The Volokh Conspiracy. "It is counterproductive for counsel to litter his brief with burdensome material such as 'WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!'"

And finally, spam of the week: two e-mails arrived at the same time, hawking Viagra, with rather good From: lines: Decrepitude K. Servomechanisms and Booker G. Assiduousness. I don't know, they have a ring.

kate_nepveu: sleeping cat carved in brown wood (Default)

Sauron: Offer and Acceptance. An analysis of Sauron's offer to Dáin in Fellowship of the Ring under contract law, with side excursions in the comments into property law, environmental regulation, employment law, ethics, and civil procedure.

(Inexplicably, no-one has taken up the call to examine the legal issues surrounding the Silmarils.)

kate_nepveu: sleeping cat carved in brown wood (Default)

Work last week was, well, I could complain, but it would be (a) tedious and (b) indiscreet. Suffice it to say that I decided I needed to take Saturday completely off, else I feared I would start looking for nearby concentrations of liquid in which to drown myself. I took a nap and read one and a half books (the half was finishing something I'd started after our 40-odd trick-or-treaters stopped coming)—such luxury! I'd planned to go to a co-worker's Halloween party too, but at the last minute I realized I was still very sleepy, with a rotten headache to boot, so I skipped it. Of course, Sunday when I started working again I plunged right back into the Pit of Despair, plus the dog was sick which cut short my working hours. We were both very glad to have Chad come home from a weekend D.C. conference, though.

In which Kate confronts her inability to protect her loved ones against the randomness of life, as exemplified by a scare with her dog (who is fine now). Morbid, somewhat gross, and not nearly as long as this cut text would suggest. )

A couple of links:

  • William W. Bedsworth, Associate Justice of the California Court of Appeal, writes a monthly humor column; this month's is about inmate litigation:

    What's more, there's some kind of primeval energy that infuses inmate pro per cases. They're like rabid wolverines—capable of inflicting damage way out of proportion to their size and completely indiscriminate about their victims.

    *nods furiously*

  • It's one thing to know that Yale sends a really high number of clerks to the Supreme Court; it's another to glance at an article focusing on minority clerks and immediately recognize three of the names as people you were in class with or worked on journals with. (That doesn't count the non-minority Yalies, whose names aren't mentioned in the article.) I know they're all extremely smart, but it's still just weird.

And now I have lots of work to do.

kate_nepveu: sleeping cat carved in brown wood (Default)

This week was largely taken up with my bench trial on Thursday, which did not, after all, only take one day, because the judge had to leave at 12:30. So this coming Friday, we'll put on the other half or so of our case, and the other side will put on their case; I think we can finish Friday, but it will probably take most of the day. It's a closed hearing, so unless it makes the papers (I hope not, because that would mostly likely mean that things went horribly wrong), no details will be appearing here—it concerns a person who pled not guilty by reason of mental disease or defect to a crime.

On Friday, I saw a noteworthy oral argument. )

Current events this week: Hurricane Isabel generated a little rain and some wind Friday, and that was it. And the dog was thrilled that Chad was home this weekend because his conference was rescheduled. Chad did heavy yard work, and I did, hmmm, not much of anything, really. Oh, I made cookies because the neighbors stopped by for dessert tonight (and the dog pulled three off the table where they were cooling and ate two. Apparently she doesn't know or care that chocolate chips are bad for her . . . ).

I'm also getting hit hard with the Swen virus, which is unusual for me; I'm not in any Outlook address books to speak of, so usually I don't get hit with Windows-based viruses. (Usenet addresses appear to be a source, so I think that's it.) I use MailWasher as a spam filter (free or pay, Windows, POP3 or Hotmail; I really like it), and it's catching them all with a pretty simple filter, which I offer here if you're having this problem too: if your program filters on body text, tell it to dump anything with "latest version of security update" and "September 2003 Cumulative Patch".

[ Edited to correct the filter: that's "September 2003, Cumulative Patch" (note comma), which by itself appears to be sufficient, actually. ]

Entertainment this week: watched DVD episodes from the first season of A&E's Nero Wolfe series, The Doorbell Rang and Champagne for One. The series isn't perfect (too much yelling, and no-one ever takes off their hats, which drives me nuts), but it captures the spirit very well, and it's too bad A&E canceled after the second season.

Quick hits

Jul. 16th, 2003 06:38 pm
kate_nepveu: sleeping cat carved in brown wood (Default)

Blog-like items.

  • A Washington Post article on World Trade Center fraud. Which was very little compared to the overall size of relief efforts, but fascinating to read about all the same.
  • A droll WP article about a Democratic candidate forum hosted by the Human Rights Campaign:

    With that [introduction], seven of the nine Democrats -- only Sens. John Edwards and Bob Graham did not attend -- take the stage in a systematic effort to say, in a collective manner of speaking, that some of the Democrats' best friends are gay.


  • I frequently disagree with posts over at the Volokh Conspiracy, but Eugene Volokh has posted a cogent series regarding gay marriage, trying to look at the arguments offered against it in a concrete manner, rather than tossing around vague abstractions. Start with "How Sweet" and scroll up and up, to (so far) today's post "Still More on Gay Marriage".
  • Song lyrics of the day, courtesy of my morning commute CD:

    Wouldn't be here if the Athenia hadn't sunk
    Or if dear old dad hadn't got so drunk

    From the Old 97's "Rollerskate Skinny," off Satellite Rides. A close second is this verse from the same song:

    Ain't nobody gonna see eye to eye
    With a girl who's only gonna stand collarbone high
    Rain's gonna come in fair-sized drips
    We're gonna go to heaven wearing paper hat ships

    but that can't match the sheer "Huh?" value of the first.

kate_nepveu: sleeping cat carved in brown wood (Default)

In re Bell South Corporation, No. 02-15362 (11th Cir. June 17, 2003) (243K PDF). This is the decision I mentioned in comments to my last post.

This decision opens by stating, "we are called upon to consider the appropriate course of action where a party is accused of contriving to engineer the recusal of a district judge by hiring a close relative of the judge as counsel." (Slip opinion at 2.) More specifically, "it is well documented that Judge Clemon [of the Northern District of Alabama] has been forced to relinquish numerous cases because of the participation of Price [his nephew] and/or a firm in which he is a partner." (Id. at 3.) How numerous? Well, in 1995, the Judge had had to recuse himself fifteen times in the prior two-and-a-half years. (Id. at 5.)

It's not that the Northern District of Alabama is lacking in lawyers or that Price commonly represented the defendant in the current case. Oh, no. The lower court found that

Based on a computer analysis by court staff, Price was retained in only four of the 204 cases in which BellSouth was sued in the Northern District of Alabama since 1991. Although the 204 cases were divided among 19 different judges, three of the four Price cases were initially referred to Judge Clemon, forcing his recusal. The court found the fourth case to be of dubious value, since the appearance was entered only after [the recusal controversy started in the present case].

(Id. at 11.)

And in the present case, the defendant already had perfectly good attorneys, from the same town, representing them in a related case in a different district. Not surprisingly, the lower court disqualified Price from representing the defendant in this case, and the Eleventh Circuit upheld it.

Two points.

First, if you're like me and reading this, you're wondering what it is about Judge Clemon that makes BellSouth so eager to avoid him. Is it just that he has a reputation for being pro-plaintiff—make no mistake, judges do have reputations, but tough, you're still not allowed to judge-shop? Well, maybe, but all the way down in the concurring opinion I find this fact, in a response to the dissenting opinion:

It is also not clear that having a nephew or cousin present a case to a judge is more damaging to the orderly administration of justice than scheming to obtain the services of the judge's relative to force the judge's recusal, especially where a party may be seeking to avoid the one African-American judge resident in the district.

(Id. at 58) (emphasis added).

Did I mention this was a potential class-action lawsuit over racial discrimination?


Second, and what I really wanted to point out about this decision:

I am just fascinated at trying to imagine what the family relationships must be like here—weren't you trying to imagine holidays or family reunions in the Clemon/Price family? Was there prior bad feeling between the two, is this generating bad feeling, or is considered nothing personal? There's a fascinating story in there somewhere, and I doubt I'll ever know it; gossip doesn't travel well from the Northern District of Alabama to the Northern District of New York, where I practice, and, of course, it's really none of my business. But I confess, I wonder all the same.

kate_nepveu: sleeping cat carved in brown wood (Default)

The first paragraph of United States v. Veysey, No. 01-4208 (7th Cir. June 26, 2003) [ 11-page PDF] reads:

John Veysey appeals from his conviction, after a jury trial, and sentence of 110 years in prison for mail and wire fraud, arson, and the related offense of felony by fire. The facts are amazing, but we shall resist the temptation to recount them at length. In 1991 Veysey set fire to his house and inflated the claim that he then filed with his insurer. The insurer paid, and the house was rebuilt. The following year Veysey married a woman named Kemp, increased the insurance on the house, removed the valuable contents of the house, along with himself and his wife, and then cut the naturalgas line inside the house, causing the house to fill up with gas and explode spectacularly, utterly destroying it. He grossly exaggerated the value of the property allegedly lost in the explosion—some did not exist and some he had removed before the explosion. The insurance company (a different one) paid, and he used part of the proceeds to buy another house. The next year he tried to kill his wife by driving his van with her in it into a river. When that failed he killed her by poisoning her, and collected $200,000 in the proceeds of insurance policies on her life. He placed personal ads in newspapers, seeking to meet women. He became engaged to one of the women he met through his ads, named Donner, but broke his engagement after failing to procure a $1 million policy on her life. He then took up with a Ms. Beetle. This was in 1996 and the same year he burned down his house, again submitting an inflated estimate of the loss and receiving substantial proceeds from the insurance company (a different one, again). He then married Beetle, and they moved into a rented house. She insured her life for $500,000 with him as beneficiary. One night in 1998, after drugging her, he set fire to the house, hoping to kill both her and their infant son, on whom he had also taken out a life insurance policy and who was in the house with her. They were rescued, and soon afterwards Veysey and Beetle divorced. The house was rebuilt and Veysey persuaded a woman named Hilkin to move in with him after she had accumulated some $700,000 in life insurance and named him as the primary beneficiary. He apparently intended to murder her, but he was arrested before his plans matured. There is more, but these are the highlights.

(Emphasis added.)

After dismissing Veysey's challenges to his conviction and sentence, Judge Posner dryly notes in the last paragraph of the decision:

We wish to remark finally the apparent carelessness of the insurance companies, particularly the fire-insurance companies, in failing to pool information concerning fire claims. As a result of this failure, the insurers who insured Veysey against the last three fires were unaware of his previous claim or claims. This is a matter deserving of the industry's attention—and, with recent improvements in electronic storage and retrieval, beginning to receive it. Bruce R. Fox, "Technology: The New Weapon in the War on Insurance Fraud," 67 Def. Couns. J. 237, 241- 42 (2000).

Uh, what he said.

(Why yes, I can't sleep, why do you ask?)

[ Link via How Appealing. ]

kate_nepveu: sleeping cat carved in brown wood (Default)

I've seen some people saying, in the aftermath of today's decision in Lawrence v. Texas, that the Court's decision has somehow foreclosed a constitutional argument for gay marriage, because of the path it took to reaching its result. I think this is wrong, but explaining why will require a mini-lesson in constitutional law. (U.S. lawyers can probably skip this post.)

The path the Court was offered and didn't take is the one that most people thought was more likely: the equal protection argument. The Fourteenth Amendment says that no State shall "deny to any person within its jurisdiction the equal protection of the laws." The argument was that because Texas prohibited sodomy between persons of the same sex, and not persons of the opposite sex, that it denied equal protection of the laws.

I've seen people lamenting that the Court didn't take this path, because accepting that argument could lead towards gay marriage, where its current opinion doesn't. As a corollary, people have pointed out that accepting this argument would be a bigger extension of the Court's jurisprudence.

I think both of these are wrong, or at least not necessarily true. Taking them in reverse order:

In the post I linked to earlier, Professor Balkin states that by not using the equal protection argument, "the Court does not have to hold that gays are a suspect class or that classifications based on sexual orientation are entitled to heightened scrutiny." Which is true. But I think the Court could have invalidated the Texas statute without doing either of those. (Of course, Professor Balkin didn't say it had to do either, but I think a lot of people are assuming that.)

Equal protection jurisprudence is a three-tiered affair. To oversimplify slightly, classifications based on race are subject to strict scrutiny; gender, intermediate scrutiny; everything else, rational basis review. The tougher the scrutiny, the stronger the government interest behind the classification has to be. When the Court struck down Colorado's Amendment 2 (which said, you can't pass of any laws or ordinances that prohibit discrimination on the basis of sexual orientation) in Romer v. Evans, it said it was doing it under rational basis review. Many hoped that the Court would use this case to move sexual orientation into the same tier of scrutiny as gender.

Justice O'Connor's opinion, which concurred only in the result, would have invalidated the statute on rational basis review only, by extending Romer to hold that either moral disapproval or animus could never be a rational basis for a law. Justice O'Connor felt that the Texas law was only motivated by one or both of those, thus making it unconstitutional. (Note that O'Connor joined the Bowers majority opinion.) I think this would have been an entirely plausible majority opinion, and probably the one most people expected to see. So invalidating Texas's law could have been done on rational basis review, and a decision on equal protection grounds wouldn't necessarily have been a big step past Romer. And I think it's a tossup whether prohibitions on gay marriage would pass rational basis scrutiny at the Court.

The path the Court did take is what's known as the substantive due process argument. The Fourteenth Amendment says in part that no State shall "deprive any person of life, liberty, or property, without due process of law." The Court has defined "liberty" to include certain rights clustered around ideas of family, sexuality, reproduction, and privacy; these get labeled "fundamental rights." So, for instance, there's a fundamental right to direct the raising of your children, to access to contraception, and to abortion. Obviously these rights are subject to government regulation, but the government has a heavier burden to justify that regulation.

After today, there is a fundamental right to engage in private, consensual sexual conduct, no matter what gender your partner is. This stems from the recognition that such conduct "can be but one element in a personal bond that is more enduring" (slip opinion at 6) and that the ability to choose these personal bonds is central to the Fourteenth Amendment's liberty (slip opinion at 13).

Here's the thing. The Court has previously established that the right to marriage is also a fundamental right (in Zablocki v. Redhail, among others). And the Court's rationale for protecting private sexual conduct applies to marriage just as well—personal bonds, yes? So I think it's a small logical leap to find that marriage is a fundamental right, no matter what gender your would-be spouse is. (Obviously it's a bigger political and social leap for the Court.) Then we're back at the question of whether the government's interest in regulating that right is sufficient; and for fundamental rights, then the interest has to be quite strong: a compelling interest, limited by narrowly-drawn laws.

So, the lack of an equal protection argument doesn't mean that the constitutional argument for gay marriage is dead. On the contrary: while the standards of review tend to be squishy in practice (many people think Romer is not actually rational basis review, for instance), on its face, fundamental rights scrutiny is tougher than intermediate scrutiny, which is almost certainly the highest that sexual orientation would receive.

Do I expect to see the Supreme Court hold that gay marriage is constitutionally required? Yes. Do I expect to see it soon? Not necessarily. I don't know what rationale will be used, but it could be either equal protection or substantive due process; Lawrence v. Texas doesn't rule out either.

[Edited to fix one case name and add another.]


Jun. 26th, 2003 10:58 am
kate_nepveu: sleeping cat carved in brown wood (Default)

Texas's law prohibiting same-sex sodomy has been overturned, on the absolute best of the grounds offered to the court.

The AP has the PDF of the majority opinion up already, and at the bottom of page five I started jumping up and down in my chair:

The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.

Wow. Wow. Wow.

And explicitly refusing to decide on Equal Protection Grounds, because if so, "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."

(O'Connor concurs in the result only on Equal Protection Grounds, but there's still a majority for the privacy argument: so the answer to that question is "no.")

The final upshot:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. . . . The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.

Out of respect for my current happiness, I shall pointedly ignore Scalia and Thomas's dissenting opinions. Wow.

[ Edited to add: Professor Balkin has a good, more thorough breakdown of the decision, with some comments about the broader implications. ]

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