Sky News, one of the non-BBC outlets in the UK, has me confused this morning. I flipped on the hotel TV while getting dressed, and was greeted with a headline declaring that Zarqawi had been captured and two men discussing the good news. One of them noted that this was particularly fortuitous news on the day of the handover.

Eh, what? Wasn't the handover supposed to happen on Wednesday? CNN certainly gave me that impression, with their non-stop display of graphics and journalists bragging about how On The Ground, In The Action they were.

Then the headline suddenly changed to 'General Denies Zarqawi Capture,' and the two men, as confused as myself, haltingly claimed that Reuters had gotten something wrong. An erroneous translation of something from an Arab news source. Or something.

Getting back to the early handover -- Chris Patten said that moving it up by a couple of days, and doing it without too much ceremony, was very sensible, as the Iraqi insurgents probably had planned to cause as much havoc on June 30 as possible. This sounds right; I think the Bush Administration probably has learned that the more fanfare they produce, the more likely it is to come back and bite them on the butt.

A funny thing happened on the way to the bookstore today: as I was looking for Shakespeare & Co. (lame American tourist thing to do, which I completed by buying Ulysses), I came across Paris's gay pride parade.

At first, I thought it was very poor. "My grandmother could throw a better parade than this!" etc. Then I realized that this -- the people standing aimlessly on a bridge across the Seine, the pretty young women handing me flyers -- was just the warm-up.

The real parade swung through about half an hour later, complete with motorcycles, floats, a "Just Married" couple and a moving concession stand selling shish kebabs. There was a slight corporate feel to the whole event, with a radio station sponsoring it as a whole and several companies' names plastered on floats, but I suppose that's part of going mainstream.

Incidentally, the New York Times recently featured a Christopher Caldwell article about same-sex unions in France, which have erupted onto the front page with a small-town mayor's having performed the nation's first.

I just wanted to let everyone know I am alive and out there. I have been a less than zealous contributor to De Novo in recent weeks, but busy-ness has kept me from sitting down outside of work and truly analyzing legal problems. It's happening at work (I think), but that time has immensely drained my thought processes at other times. Hopefully, the spirit will move me at some point here to think about some of the extraordinary cases that have come down in recent days or are yet to come down.

I would like to point out one man who is thinking about the issues: OSU Law Prof. Douglas Berman. I worked for Prof. Berman last summer, had him for Criminal Procedure this spring, and greatly respect the guy. He has, at long last, joined the blogging world after countless months of blog-lurking and one post here on De Novo's first day.

His blog is Sentencing Law and Policy, and I also discuss it here. A man who's law-school mantra is "it depends" should provide the blogosphere with an interesting new voice . . . perhaps even one of -- gasp! -- moderation. I encourage everyone to check it out.

[P.S. - Don't miss Professor Jeff Cooper, who is back, and uber-professors Sanford Levinson and Cass Sunstein, who are now blogging at Balkinization.

Sunstein points out today that the very language ("cruel, inhuman, or degrading" treatment) used by the Office of Legal Counsel to set the limit for acceptable treatment of prisoners in Iraq is the same language used in the Iraq Constitution to ban such treatment.

Have I mentioned I love this blogging thing?]

From the New York Times:

'Judge Certifies Suit Accusing Wal-Mart of Sex Discrimination
The class-action lawsuit against the nation's largest private employer could represent as many as 1.6 million female employees.'

This ruling is not about the merits of the sex discrimination case itself, but about whether Wal-Mart's various stores operate as essentially autonomous businesses, or if they are getting their ideas from on high. This is relevant because if all the stores are one big business -- as the plaintiffs allege -- then female employees of all those stores can be included in the lawsuit, instead of having to hunt up a willing plaintiff from each individual store.

I was reading the International Herald Tribune last week and came across an article about some findings from the 9/11 commission. One of them included information that, according to the article, was obtained from terrorist ringleader Khalid Shaikh Mohammed.

I'd been debating the issue of torture lately, and thus wondered: How did we get this information out of KSM? What methods were required? Was the Geneva Convention violated?

But then again, this was a man who helped to plan the attack on the World Trade Center. Do we really mind if he was psychologically or physically tortured in some way, if it helps us piece together what happened that day?

Funny clip from a cybersquatting case:

[T]he Letzers offered to sell the domain name to Plaintiff for $3,920,000. . . . Plaintiff made a counteroffer of $25,000. Thereafter, negotations broke down.

(Garden of Life, Inc. v. Letzer, 2004 WL 1152866 (C.D. Cal. 2004))

Perhaps we ought to rethink our hopes that a multi-billion dollar corporation called "Blog De Novo" will emerge and buy us out for a pretty sum.

Check out this article in the Sacramento Bee:

Jill LaVine, Sacramento County's top elections official, didn't expect her cable television debut to go like this.

LaVine, still in her first year on the job, had just given a full explanation of the threats facing California's electoral system when her interviewer asked for clarification.

"Now, can you take that long-ass answer and put it in a nutshell like I asked you?" said Rob Cordrry, one of the satirical correspondents for "The Daily Show With Jon Stewart...

[LaVine] had never heard of "The Daily Show" before agreeing to the interview....

"Don't you think blacks should be given more than one vote to make up for that whole slavery thing?" Cordrry asked LaVine. "P. Diddy's got to be worth two votes, and Justin Timberlake, he's worth two votes, even though he's not black or anything."

Without cracking a smile, LaVine deadpanned, "That doesn't address the issue here."

Poor election official. I don't think anyone who's "never heard of" The Daily Show should be allowed to hold elected office.

Moorewatch, fighting so nobly against the "doublespeak and falsehood that spews from the mouth (and keyboard) of Michael Moore," wants to fight the film, Fahrenheit 9/11, with "campaign finance laws and equal time regulations." (Read the post if you like, it still won't make sense.)

Matto of Ichiblog notes that pesky Amendment the First.

I've written before that film has great potential as propaganda, and supposing this potential is further harnessed in the coming years, some rather interesting first amendment issues could become more relevant. Surely films like Independence Day steer clear of the false statements of fact exception to protection, but documentary type films, which present themselves as factually premised, raise tougher questions. Films as propaganda might also urge viewers to take certain action--action that may involve a purchase or some other "transaction"--in which case the films may be subject to the lower protection of commercial speech.

Could make an interesting law review article, if it hasn't already been done.

I think "duck," as PG put it, is exactly the right word for the Supreme Court's pledge opinion [article, not the decision], and I imagine most people reasonably acquainted with the Supreme Court’s behavior in the last century (particularly the last 40 years) would agree that tossing this case on standing grounds is less a ruling about standing and more a dodging of a difficult or controversial issue. I am not familiar with anything in standing doctrine that compels the result in Newdow, but standing is sufficiently malleable to support this ruling given the facts.

The legal realist judge, as commonly conceived, happily navigates malleability in the law to reach a desired result for political or other reasons. This approach to judging has, of course, been sharply criticized throughout the academy and especially in the legal corner of the blogosphere (most notably by Professors Solum and Bainbridge). The question I’m finally arriving at in this post is whether manipulating doctrine to avoid constitutional questions is, to legal formalists or other anti-realists, just as contemptible as reaching a desired result on the merits by manipulating doctrine.

The judicial practice of avoiding certain questions is common enough to have its own name: the constitutional avoidance doctrine (surprise!). My sense is that acts of constitutional avoidance (which are often quite transparently contrary to precedent) do not pinch the same nerve as garden variety realism. But should they? Don’t they threaten consistency and the rule of law just the same? It wouldn’t surprise me if the truly committed formalist objected to constitutional avoidance just the same, but I somehow doubt this is true for anti-realists across the board.

If you scorn realism but welcome (or tolerate) disingenuous constitutional avoidance, chances are you just scorn the current judiciary (certainly a defensible stance). Or not. Just a thought for formalists.