Sotomayor

In my continuing quest to tank any future judicial appointments for myself, I've got some opinions on this whole Sotomayor confirmation process.

First of all, boo-fucking-hoo to all the Republicans who want to take issue with Sotomayor's "wise Latina" comments. Yeah, she rather obliquely disparaged some old white male judges. You know what group has made some really terrible decisions in the past 2 centuries? Old, white male judges. I'm not saying that a "wise Latina" would have necessarily made any better decisions, but she certainly has a perspective that some of those old cantankerous bastards could've used.

If I were her, I'd respond to questions about this comment by saying, "You know what? I AM better at making some decisions than some of you old white bastards. Yes, you, on the Senate Judiciary Committee. My heritage doesn't control my decisions, but it informs them and it does a damn sight better than your whitebread upbringing. Next question."

"But why..."

"NEXT QUESTION. Don't make me come up there, Sessions."

But then maybe that's why I'll never be on the Supreme Court.

Second of all, that New Haven Firefighter case is not controversial. Yes, it was struck down by the Supreme Court. FIVE TO FOUR. That means that four judges of the Supreme Court agreed with Sotomayor's ruling. It is beyond asinine to say that she was way off the reservation when four of the most esteemed legal minds in the world agreed with her.

This is posturing by the Republicans to an insane degree. Only Lindsey Graham seems to see the writing on the wall: unless Sotomayor starts disrobing during testimony or firing shots into the air, she's going to get confirmed and there's absolutely squat the Republicans can do about it. She should have more confidence and tell them to go to hell.

Let's Go Crazy, Bullet-Point Style

Except, I'm not sure how to make bullet points in HTML. So you get a cheap facsimile.

* I have a big set of new cases at work. They have kept me on the phone listening to depositions for about 70% of my time the last 2 weeks. This is a marked increase from the 0% I had previously had going. I think I might actually like attending depositions better than being on the phone. Jury is still out on that one, though.

* It has now become all kinds of chilly here in the Bay Area. Perhaps Thanksgiving was some kind of marker, or the beginning of December, but last night I slept IN a fleece. With blankets. I wasn't actually cold, but I didn't overheat either, and that's saying something. This morning in the apartment, it was 57 degrees.

* When I sneeze while sitting at my desk, I have a tendency to shoot back in my rolling chair, ala some sort of cartoon character. Few coworkers have caught me doing this, but I am fearing the day when they do. It is perhaps 90% an unconscious reaction.

* No politics on here for ages! Chambliss won in Georgia, to the surprise of approximately nobody. I still find it hysterical that Republicans, the sole party governing our nation for 6 of the last 8 years, now argue the necessity of a more balanced Congress. Also that they seem to routinely fail at 8th grade civics by forgetting we have three branches of government, and the Supreme Court is still 5-4 conservative.

* I get to go home for more than a few days at Christmas, after all. I am stoked. Whirlwind trips are a pain in the ass for so many reasons, and this year it was possible that my 4 days trips would also include (beyond the flights) a 16 hour car ride to Florida. It still includes that, but now stretches 9 days. Hooray!

* Saw Blood Diamond finally. It was a decent movie, but pretty much screwed over any potential girlfriends I may have from here on out. Sorry ladies, but no diamonds for you. And not just because of the movie; I've done the independent research. I don't trust those diamond-shilling bastards. It's all burlap gifts from now on. Because everybody loves burlap!

* It's foggy as all get out. I have "Desire" by U2 stuck in my head. And I'm tired of coming in early to work, even if my "early" is later than the rest of you people's normal start times.

Hulk vs. Hulk, and Other Random Points

I watched the new "Incredible Hulk" movie (with Ed Norton) last night. I actually meant to watch in Sunday but stupidly bought the previous Ang Lee/Eric Bana creation. I don't hate the old one, like many did; I thought it was far more nuanced than most superhero movies, and appreciated the subtext that Lee brought.

This new Hulk was definitely more straightforward, but not stupid. At least, not Fantastic Four-level stupid. I think they were truer to the Hulk's "powers" in the Ang Lee version, though. He gets stronger as he gets madder. He has, to some extent, unlimited power as long as people keep pissing him off. That's why he beats Superman, because at the end of the day he is stronger that ol' Supes.

The new Hulk, Nortonified, is not quite as big or strong. He is a better Hulk in other ways (he doesn't have to fight "Hulk dogs", for one thing) but I wish they had alluded to the deep ocean of rage that fuels his strength. Still, solid B effort. B+ for including Iron Man at the end there.

........

I lost, sort of, in court yesterday. It was disappointing but valuable because it is the first time I lost when, really, I shouldn't have. The judge was just not open to hearing my argument, and not open to an objective review of the dispute. It is not a remotely important issue, but it stings. I don't like losing when the facts and the law are on my side, but it happens, and I'm glad it happened on this instead of on, say, something dispositive.

I am also a bit under the weather with a very mild cold. I don't really get sick, hence it is mild, but it is a pain in the ass. It did not stop me from completely rearranging my apartment on Sunday, though it did wear me out a lot faster than moving a couch 10 feet should wear me out.

"Your Honor..."

The day before oral argument, even at a fairly inconsequential hearing, it a pain in my ass. Every time I have a moment of silence, or am not actively engaging in some activity, I start rehearsing said argument in my head.

Or, out loud. In the shower, driving on the highway, drying off after the shower. Naked oral argument is weird, by the way.

It doesn't really prepare me, either. I will speak from a rough outline which has yet to be written, so all the pacing and practicing in my apartment is vaguely useless.

I do like this part of my job, though. And, the tentative ruling was not in our favor, which makes me the underdog, which makes me like it even more.*

*though note to self, write better briefs so you're not the underdog.

No on Prop 8

A fairly obvious statement, given my previous entries on the subject of gay marriage. I'm all for it! Marry! Be happy!

But I wanted to point out an interesting and hypocritical twist on the Prop 8 battle here in California.

Conservatives who don't wish to sound overly harsh are often quoted as saying that decisions of this nature should be "left to the states". That is, California decides who can marry in California; Wyoming decides for its own, and so forth. This position has some legal problems that I won't get into--recognition of marriages in other states being necessary under the Full Faith and Credit Clause of the Constitution--but in California, the hypocrisy of the "leave it to the states" position has been exposed.

How? The entirety of the funding and support for this ballot initiative is coming from outside California. They're specifically not "leaving it" to us; outside conservatives are funding the commercials and overall support of the initiative.

(Also, ballot initiatives of this kind are completely asinine. I do not want amendments to the state constitution coming because of popular vote. It's the least-thought-out method of legislating our democracy allows. Ballot initiatives are crap.)

That's not to say the opposition hasn't received donations from non-California sources. But the disparity, according to news reports, is staggering. Opposition to Prop 8 is largely California-based; proponents are found pretty much everywhere else.

Just so it's official: No on Prop 8, people. I defy any of you to come up with a logical or rational explanation as to why a constitutional amendment banning marriage between gay people is a good idea.

Because "God said" is neither logical or rational.

Let's Clear This Up

I've been trapped in deposition hell for a few days, but am now finally free. The Lions are still awful, the last debate went well, and I'm going to Mexico in 2 days.

But let's talk about voter fraud.

That bastion of community activism, ACORN, has been fraudulently registering voters for the general election this year. That's not cool, but let's review the different between registration fraud and voter fraud.

So far, nobody besides ACORN has been defrauded. They (improperly) paid volunteers for registrations, and thus got screwed when it turned out the registrations they paid for were not valid. But none of the fake registrants--including Bugs Bunny and Indiana Jones--will be showing up to vote on election day.

You see, registration fraud only becomes actual voter fraud when those persons who have filed false registrations show up to vote (multiple times, in theory). Since it's going to be tough to convince a poll worker that your name really is "Mickey Mouse" it is unlikely that that will happen with any of these registrations. No voter fraud.

Voter fraud is a big boogeyman in politics, especially in right wing circles. It preys on the "us and them" mentality that super conservatives often embrace. It conjures visions of a horde of liberals and minorities roaming the countryside come election day, voting dozens of times and pushing the Democrats into power.

But in the last few decades, despite the cries of "fraud" by BOTH parties, there has been little evidence that it has actually occurred. And when they do arise--Ohio in 2004, for example--it's not the liberals or minorities that are accused of perpetrating the fraud.

ACORN acted stupidly. But they haven't damaged our democracy, as a clearly out-of-his-mind McCain stated last night. They've damaged themselves and their credibility. But they can't really touch Obama on this, as even McCain was as recently as 2006 a supporter of the organization. Obama's legal work in the 90's is grasping at... well not even straws. Air.

Capitalism Bleargh

This is part of a continuing series wherein I insure that I can never be elected President because I post inflammatory anti-American statements on the Internet.

One of the most annoying business practices that I've ever run across--and something that, I believer, typifies the capitalist idea of profit maximization at all costs--is the policy of automatic denial.

This is used in a number of different ways, the most egregious being when an insurance company decides to immediately deny any/all claims that are made. Of course, in California it's illegal to do that (hooray for our industry-destroying regulatory system!) but when you deal with smaller insurance companies that don't have a need to put everything down in writing, it rears its fugly head.

But this post isn't just about insurance companies, who we can all agree are sort of jerktastic as a rule. This method is also used in business-to-business with depressing frequency. The idea there is that if you question line items in a bill (say, for completely random example that in no way relates to my life, bills to a company for legal services) every time you receive such a bill, at least a handful of service providers will simply accept your nonsensical or baseless reduction.

It's bottom-line effective, I'm sure. If you just "declare" that you're cutting all bills you owe by 15%, some will fight you and others will shrug and figure arguing is not worth their time. Some may not even notice the reduction.

The downside is obvious. Those of us doing legitimate work and having our billing questioned for no reason other than to bully us into taking a reduced amount--again, for no discernible reason--are demoralized. It's professionally insulting, and I'm betting that with less scrupulous service providers, it leads quite quickly to bill inflation.

I understand how services are rendered in business-to-business scenarios. You want the best work for the lowest cost possible. If you can find better service providers for lower, by all means hire them. But this (fairly commonplace) method of cost reduction is just slimy, no two ways about it.

Maybe it's unfair to blame this on capitalism. Perhaps it's just a pendulum, like so many things, and now it's nearing the end of its swing back in favor of the corporate clients. In years past--I've been told--insurance companies were routinely beat up by the law firms they employed, and billing spiraled out of control. The market corrected itself, but like every other time a market corrects a flaw in the system, it's now overcompensating.

Leave Me to My Books!

This best part about this article is the company it puts us lawyers in.

Most people usually don't think of lawyers as introverted, but the bulk of the lawyers out there aren't Jack McCoy trial lawyers (though I guess he's the DA now, and no longer a trial lawyer). They sit in offices and sift through paperwork for 90% of the time.

The problem is that the other 10% of the time, you have to fight your introvert nature. And not just by going to social/marketing events (dinner parties, etc.) but for really important, case-dispositive things. Court appearances, contentious telephone calls with opposing counsel--these are tough for the introvert to navigate. I know, because I have a very strong introvert streak.

But it works out in the end, at least in my case. My introversion stems mostly from being uncomfortable when I don't have the full picture of the situation. I don't like not having all the information, so when I'm in that situation I tend to sit back and nod, or just take notes. But when I do have all the information (or--and this is key--when I think I do) I use that as a means to cut right through my introvert tendencies. This works out great in court, when I've had a chance to prepare, review statutes, and so forth. It works okay in deposition, when you're never 100% sure what the witness will say.

It still works poorly when I have to call people, especially when I need something from them.

Maybe I should have been a "systems analyst", whatever the hell that is.

Dear Law School Development Staff:

I will not be sending you any money. Please stop asking.

The reason for this is two-fold. First, as you are aware, I have a crushing amount of personal debt that needs to be taken care of. It is manageable and being managed, but it is also the size of a house down payment.

This debt does not preclude me from donating money to other sources--public television, friends' charity races, and so forth--but consider that I presently pay more than $1,000 to you for my legal education every month already. Yes, you received this money 5 years ago. Excellent for you. But I am paying for it now. Why on Earth would I want to donate more money at this time?

The second reason? Well, you know I don't care much about things like prestige and law school rankings. But others do, and this includes potential employers down the line. Unfortunately, my degree is worth less now than when I earned it, thanks to the school's decline in the oft-maligned academic rankings? I am not personally bothered by this, because I could give a rat's ass where somebody went to get their education. But it does alter my economic potential to see the school drop.

You could argue that more donations from alumni might help reverse this trend. I disagree. And, even were you all to successfully crack the top 50 schools in the country, the first reason still applies: I already gave you a life-altering amount of cash.

(this letter, or a slightly more professional variant, will be going in the return envelope to every USD alumni contribution request I receive for the next 10 years)

A New Godwin's Law?

There is an entertaining maxim about online discussion forums called Godwin's Law. It states, basically, that as an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.

That is to say, comparing something/someone to Hitler is basically signaling that you've checked out of the argument and are done making any real point.

I think there may be a new version of this law descending upon cyberspace. To paraphrase Godwin, it is that as an online discussion continues, the probability that someone will demand that you "read the Constitution" and/or "the Federalist Papers*".

Now, I'm a big fan of both sources. After all, if you're debating rights and governmental privilege and whathaveyou, the Constitution is pretty important.

But "read the Constitution" is such a stupid request that it pretty much kills the debate. There have been millions of scholars, writers, legislators, and armchair constitutionalists examining our government's founding documents, for more than 200 years. They have read it. Many know it by heart. And I would venture that even the most myopic among them would not assert that the Constitution is clear and unimpeachable in every aspect.

So there you are. If you argue about politics or policy, and someone tells you to go read the Constitution, you know the debate has ended (and, probably, you won).**

*The Federalist Papers are what people demand you read when they believe themselves to be experts in Constitutional law. Because nobody reads the Federalist Papers and those that do know they can be as open-ended in interpretation as the Constitution, with the added bonus of holding no legal weight whatsoever.

**Like Godwin's Law, there is an exception: if the person you are arguing with insists that, say, the freedom to assemble is in the 22nd Amendment, this is a reasonable response. However it would be easier to simply quote the Constitution, rather than direct others to it (and, ostensibly, away from the debate that you are apparently losing).

The Hitler comparison can also be used in very specific settings, such as comparing German leaders circa 1915-1950. That's pretty much it, though.

Let's Get Down To It, Then

This whole "fired U.S. Attorneys" thing has got me annoyed beyond belief, and I'll tell you why: the entire thing centers around the attorneys' alleged failure to prosecute voter fraud or corruption cases.

Everybody's arguing back and forth about whether the attorneys can be fired for any reason, whether they should be, how politics plays into, and so forth.

But the real question, one that I haven't seen answered anywhere as of yet, is this: why doesn't anybody point out which obviously fraudulent cases weren't prosecuted correctly?

If there are all these cases of voter fraud being perpetrated (by the Democrats, of course), and the U.S. Attorneys investigated and failed to bring charges, then the attorneys have files on them. Large files, I would imagine. Investigative reports, perhaps even witness testimony. So let's see these miscarriages of justice! Let's see the case files!

I don't think the reasons we haven't seen them is a slam-dunk against the GOP. I would imagine there are many shades of gray in some of the voter fraud cases, and that semi-reasonable people (i.e. politicians) would come down on either side. But I would also imagine that, since the director of the FBI has himself said that there hasn't been a failure to prosecute on any case that he considered valid, the Republicans are full of it.

It's Not Like Anyone Wants to Broadcast the Detroit Lions, Anyhow

Ah, copyright; my first legal love. Great story on Ars Technica yesterday about how the NFL's lawyers sent a cease-and-desist to probably the worst possible target: a law professor and staff attorney for EFF.

The NFL, as any football fan knows, is a big fan of telling people that their telecast is copyrighted and that pictures, descriptions, or accounts of the game are prohibited if done without the NFL's permission.

Any 1st year law student can tell you the NFL is full of crap. You know, legally speaking. Their broadcast is copyrighted; accounts of a football game are facts and you can't stop someone from giving an account of anything. Same goes for descriptions. If I "describe" the movie 300 on my blog, the producers can't sue me for copyright infringement. Pictures are a bit murkier; if you take a picture at a game, it's probably yours, but the uniforms and logos are all trademarked so you probably can't go around selling it. The NFL is tough that way.

None of this matters to fair use, though, which allows small excerpts of ANY copyrighted material, if done for specific uses (like education; professors of law easily fall into this category).

One of the reasons I've been interested in copyright is because I believe that copyright holders--especially monolithic entities like the NFL, Disney, or Viacom--are almost criminal in their misuse of copyright law to strong-arm content users into stopping what is actually perfectly legal "fair use" of a copyrighted work.

And that's why this is so perfect; I hope that Seltzer (the professor, if you didn't click the link) pushes them all the way to court on this one. My real motive: the NFL stopped using a 4-second clip of Barry Sanders during their copyright spiel, and since he's one of the greatest runningbacks to play the game, I feel their copyright message no longer has any meaning.

No, that doesn't make sense. But it was Barry!

2-0

My exceptional legal career continued today, as I went to court to fight what I considered to be an unjust MUNI ticket. Also, because I didn't know it would only cost $100 (the MUNI website says fines can be $500) until after I scheduled the court date.

Turns out, it takes 45 minutes but all the judge asked for was my MUNI pass at the time -- which I gave him -- and the whole thing was dismissed.

Will I remember this 40 years from now, when I sit atop the Supreme Court dispensing justice as a robe-clad modern-day gladiator of the legal arena? Probably not. But it was still fun to win one.

Oh, and I'm 2-0 because I fought a parking ticket in law school and won that, too. For those keeping score.