incidents and accidents, hints and allegations

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."

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 ckd for the link.)

[Cross-posted to my booklog.]

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.)

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.

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.

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.

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.

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.

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.

  Indeed.

• 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.

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. ]

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. ]