Law Dork

Last night, I saw "To Kill a Mockingbird" at the Ohio Theatre as part of CAPA's Summer Movie Series.

I've often been accused of over-analyzing things to death, but here goes anyway (and I hope not to kill the "Mockingbird").

The movie -- as all know -- is, at least in part, about the dangers of stereotyping, specifically stereotyping black men as only being capable of doing inappropriate things to white women. The prosecutor plays this up perfectly with his mix of arrogance and his related presumption that he can prey on the prejudices of the jury to get his conviction.

Of course, Gregory Peck, as the court-appointed defense attorney, makes his impassioned, if fruitless, plea to counter the prosecutor. His lawyering, I thought going into the movie, would be a proud reminder of all that the law could be. I had read Harper Lee's book and seen the movie, but those experiences were more than a decade back, and I just remember them standing out to me as one more sign of the principled role that lawyers can play in advancing our society toward its goal of fair, unbiased administration of justice.

Watching the movie last night, however, I was as struck by Peck's impassioned pleas that preyed on the elitism of the jurors and uneducated background of the alleged rape victim and her father as I was by the prosecutor's pleas relating to the racism of the jury. Peck's character lets the jurors know that they are more sophisticated and intelligent than the alleged victim and her family and admonishes those jurors not to employ the same racist attitudes as the family in reaching their verdict.

Likewise, I was very interested in how the moral rightness of Peck's actions turn on the fact the the woman -- the alleged rape victim -- has lied about the rape. The ever-present specter of women lying about rape -- or "egging it on" by "seducing" the man -- is reinforced to an extreme degree in this movie, in which the man with the morally unquestioned ambitions spends a cross-examination convincing the jurors and the film audience that the woman is a liar. This to me seems quite an ethical quandry to intersperse without examination as mere stage-setting in a morality play.

Certainly, history has told us that such formed-out-of-thin-air accusations against black men were widespread, and I am not discounting such a reality here. Instead, I am simply pointing out how I was disturbed by the verbal assault Peck inflicted upon this woman from my frame of reference, having grown up in a time when it seemed ordinary that women's short skirts were seen or justified as an "invitation" for sex.

Despite the fact that last night's movie was seen in black and white, the passage of time has added color to this tale of moral certitude in a way that director Robert Mulligan could never have imagined in 1962.

It is another day of clerkship application process and class reading for the Law Dork. Plus, Mother of Law Dork is on her way to town, and we'll be having dinner together this evening. Yay!

I write about the recent sodomy statute decision issued by the U.S. Court of Appeals for the Armed Forces here at De Novo.

Bush has signed executive orders relating to the 9/11 Commission's intelligence recommendations. The AP has it here . . .

Mary Lederman of SCOTUSblog points to a dozen posts from Conspirator Todd Zywicki about the wine-shipment cases, which presents a constitutional question about the intersection of the Commerce Clause with the 21st Amendment's repeal of Prohibition. Lederman's point, however, is that what makes Zywicki's posts so interesting is not only thatthis in-depth substance is appearing in a blog but also that it's coming from a man who worked on these issues while working (until recently) as the Policy Planning Director for the FTC -- down to the specificity of a report titled "Possible Anticompetitive Barriers to E-Commerce: Wine." Very interesting insight that makes reading Zywicki's posts all the more interesting.

. . . the GOP adopted its anti-gay relationships platform plank yesterday, as detailed in The Washington Post today here. Look at their big-tent love:

The marriage section condemns "a few judges and local authorities" who presume to change "the most fundamental institution of civilization." It says same-sex couples should not receive legal benefits set aside for married couples, and it calls on the Senate to join the House in voting to strip federal courts of the authority to overturn state laws banning gay marriage.

As if to provide a slap in the face, the GOP platform also includes a line about how the party's members "respect and accept" that there are GOPers who hold differing views. They respect it, yes, but not enough to stop them from wanting to strip gay couples of all benefits and strip the courts of the duty to hear questions about such issues.

Amusingly, this was a compromise between the original position, which was that the Party "recognized" that there are such differences, and the moderate Party members' wish to see language "that identified their issues as matters of disagreement."

The AP's lede on the follow-up story about the "respect and accept" language is, "In a few words meant to speak volumes . . ."

Yes, you've succeeded. It does speak volumes.

It's "the Toby renaissance."

In his rebirth, Toby apparently has switched the nipple on which he wears his nipple ring (and I do notice such things). On the front-page picture on the left, Toby has a right-nipple ring, but on the "It's about damn time" post, what looks like the same nipple ring had jumped over to the left nipple! Amazing!

Or maybe he just plays with his photos on Photoshop and for some reason enjoys flipping them. So his left side in some pictures is actually his right side. Or vice versa. Weird.

Perhaps it is my adoration for the legal system that leads me to this feeling, but I am truly appreciative of the access we have to seeing the thoughts of our judges. Two examples this week lead me to this post.

First, I have the pleasure of spending this year in classes with Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit.

Second, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is guest blogging at Lessig Blog, where he has written about the CIA break-up proposal, "The Matrix," fair use. This is an extraordinary opportunity -- since Lessig has comments -- for anyone with access to the Internet to engage almost directly with a sitting appellate judge. Remarkable.

From Jeremy Blachman, 100 Law Students You Don't Want To Be. This is the first of many posts that Jeremy will be writing over the year that make his blog just as unsafe as porn for in-class perusal. A sampling:

19. The one who we wish the professor would stop calling on
20. The one who the professor has finally stopped calling on
21. The one who ran over the Dean's dog
22. The one who ran over the Dean's dog on purpose

Click and enjoy. At a safe time.

The Washington Post has an A1 article about Cheney's statement on gay relationships -- which he made and I mentioned yesterday. The NYTimes article can be found here. The Post article adds an additional statement made by the Vice President not contained -- but implied -- in the earlier AP story, one which makes his statement less equivocal:

"At this point . . . my own preference is as I've stated," Cheney said. "But the president makes basic policy for the administration. And he's made it."

The remarks were the furthest Cheney has gone in laying out his differences with Bush's position, and they took leaders of the GOP conservative base by surprise.

As I wrote, this is also the most public discussion of Mary Cheney that I can recall. This took his position, and the issue, to a very extremely personal level. It also places Bush in a position of possibily needing to respond -- to his own Vice President. Sounds odd, right?

But a response is exactly what some groups want. The Family Research Council, as I've seen noted several places, is none too pleased with Cheney and warned of "mixed messages emanat[ing] from the White House."

Here are some questions -- just to ask: Could -- would -- Bush use this to dump Cheney? Is Cheney using this to get dumped? If so, what would be the result?

If the Far Right goes wild over Cheney's remarks, does Bush risk dampening the enthusiasm of his base by keeping Cheney now? If he dumps Cheney, does he risk alienating moderate voters?

Or is this just something that will completely blow over and be ignored? Worse yet, is this a way of making Bush look more moderate? In other words, is this a planned disagreement? (If so, I would find it extremely offensive that Mary was being used in this way to advance Bush's re-election campaign.)

This seems to me -- saying "I am the Vice President, and I disagree with my running mate, the President" -- quite an amazing happening in the week before the Republican convention.

As I mentioned one week ago, Craig Kilborn is leaving the air -- this Friday.

Thank the TV gods. One less worthless, sexist pig on the air.

Unbelievable as you might think it is, the guy has a "designated hugger" -- an attractive woman in a revealing shirt -- who stands off to the side and hugs the guest and Kilborn at any "hugging" moment, which basically consists of any time Kilborn thinks it appropriate (for him, of course).

I haven't written much about the constitutional amendment possibly on the Ohio ballot this fall, but I will be -- and soon.

Andrew Welsh-Huggins, a Columbus AP reporter who used to work in Youngstown has written this perspective piece on the effect of the amendment initiatives across the nation on the presidential race.

[FYI: The title refers to those heterosexuals -- not all in any way, shape, or form -- who insist on marking their territory (marriage) with constitutional amendments.]

In his most extensive remarks about recognition of gay and lesbian relationships since the 2000 VP debates and the first time that I recall him talking about Mary Cheney -- his openly lesbian daughter -- so openly, Vice President Cheney spoke about the issue today in Davenport, Iowa, of all places. Some of Cheney's comments, according to this AP article, were:

"Lynne and I have a gay daughter, so it's an issue our family is very familiar with," Cheney said. "With the respect to the question of relationships, my general view is freedom means freedom for everyone ... People ought to be free to enter into any kind of relationship they want to.

"The question that comes up with the issue of marriage is what kind of official sanction or approval is going to be granted by government? Historically, that's been a relationship that has been handled by the states. The states have made that fundamental decision of what constitutes a marriage," he said.

. . .

"I think [Bush']s perception was that the courts, in effect, were beginning to change, without allowing the people to be involved," Cheney said. "The courts were making the judgment for the entire country."

Sounds like he's trying to have it both ways -- not that Kerry and Edwards aren't as well[ -- but it's certainly better than Bush].

No, this isn't a Kennedy assassination post, but instead draws attention to what is -- it appears -- a rather well-known piece that appeared in the Nov. 1963 Texas Bar Journal. Emily Mann has posted it here. A sample, reminding me of a point made already in our Trial Practice class and an underlying thought in the last SCOTUS term's 10-ton elelphant, Blakely (forgive the 1963 sexism):

Remember, no people have ever developed a better method for settling disputes among men, than our judicial system. It was developed by the legal profession, and it has been through fire, millions of times; although not perfect, it is still the "best" there is. The "jury" is the heart of the system. Always defend the system. When you lose a lawsuit, don't try to tear the courthouse down.

Goodbye, Clerk. It was good while it lasted. Thanks for your insights, and best of luck.

This article brings up the interesting question of whether a reporter can be "released" from a promise of confidentiality. The situation is, of course, the Robert Novak-Valerie Plame CIA leak, and the development is that the Vice President's chief of staff, Lewis "Scooter" Libby, told a Time magazine reporter that he needn't keep their coversation confidential.

That, in and of itself, would appear to be fine. A reporter has a confidentiality agreement with a source, and the source later says, "Nevermind, you can tell what I said." It probably happens often, and I can imagine about a thousand appropriate scenarios where that would be so.

This is different, however, because of the circumstances under which Libby released the reporter, Matthew Cooper, from his promise of confidentiality. The difference, as I have discussed before, is that Cooper was under a contempt order from a U.S. District Court judge for his refusal to reveal information obtained in his confidential conversations to investigators looking at the Plame affair.

Far from solving the problems raised when government uses its powers to insert itself into the press's investigative processes, this development shines further light on the problems and makes them more clear. Although Libby "released" Cooper from his grant of confidentiality, this release presumably came about -- in large part, if not completely -- because of the reality that this promise could have put Cooper in jail. This undoubtedly put pressure on Libby, whether directly from Cooper or Time or indirectly from public/political pressures, to release Cooper from his promise.

This is one more reason why government intervention in the press through the subpoena/contempt powers erodes the ability of the press to report on government activity independently and without fear of government prosecution.

This article makes clear that the Bakersfield, Calif., is a complete political tool. Although he is selling out whatever LGBT community he has in light of "strong opposition," he does at least "regret any unhappiness that this issue has brought to citizens in our community." Too bad I think he means the anti-gay forces and not those disappointed by his taking back of his Gay Prode Day proclamation.

As Professor Doug Berman notes at Sentencing Law & Policy:

For example, the difference in the coverage and timing of district court opinions appearing on Lexis and Westlaw has sometimes been startling -- e.g., a search this afternoon of "Blakely & Sentenc!" after June 24, 2004 produces 76 district court "hits" on Lexis and only 70 "hits" on Westlaw.

'Nuff said.

On the Friday before the 2000 election, I published my first op-ed in the paper, "Electoral College tie could cause wild ride." In it, I wrote about a 269-269 tie and what I then described as the ensuing madness that could result from "a Constitutional loophole created by the peculiarities of the Electoral College and an irregularity in the 20th Amendment." After discussion of the possibility of a President Bush serving with a Vice President Lieberman, I ended by writing that they "would then serve until the 2004 election, when this whole process could start all over again."

Well, it has. One of my professors in undergrad, Paul Sracic, has published a piece with the help of Nathan Richey, a mathematics/statistics professor, in "All Tied Up in Presidential What-Ifs," which appeared in The Washington Post this past Sunday. They discuss the math behind the possibility of a 269-269 tie this time around and "[w]hat then" by looking at the Constitution and our nation's historical experience, coming to the conclusion that a President Bush-Vice President Edwards scenario "could happen."

Check out their piece; it's not a pretty thought.

With various levels of surety, I can report that there are at least seven blogs not yet listed on my Moritz blogroll. Besides the two mentioned by Law v. Life and the one alum mentioned by better late than never in comments to LvL's post, I have been told of or come across four others, including Cognitive Dissonance Blawg, which I name because the author himself told me of the blog and said it was OK to link. (One note to the author: It does the unfortunate thing I did at first -- has a blog name completely unrelated to the URL. I would recommend fixing one or the other -- and quickly before people start linking to it. I still have to e-mail people every once in a while asking them to change "Law, Politics, & Press" to "Law Dork.")

Some questions: Is it OK to "out" a blogger (and I will continue to use that term because I see it as an accurate term in this discussion)? If the two people LvL outed didn't want the Moritz community to know of their blogs, did LvL have the right to inform her readers of the blogs? Hell, to be fair, is it right for me to re-post the links, furthering expanding knowledge of their blogs?

I have discussed this before, in connection with the Wonkette's Washingtonienne outing in May, which led to the now-infamous Jessica Cutler losing her job in the office of Sen. Mike DeWine (and getting a not-insignificant related book deal). I wrote then:

Washingtonienne started a blog. I -- like Wonkette and most others -- take that as an invitation to read and possibly link. There is no reasonable expectation of privacy -- in fact, one could easily argue the opposite to be true -- as to those things one posts on his or her blog. That still, however, doesn't mean this woman wanted more than a few friends to read. Or, hell, maybe Washingtonienne did this because she was sick of the job and wanted a way out.

So, as with my ambiguity about outing of politically involved gays, I am unsure about the "right" answer to this question. Blogs are meant to be read; they are not private journals. But is it possible that people deserve respect for their decision not to tell a certain group (i.e., the law school) about their blogging?

Now, I don't know the background here, and it's possible she was told of these blogs by the authors. But her example points to a more general issue of whether blogs are -- by their very nature -- a part of the public discourse subject to indiscriminate publicity by others. Obviously, for now, I have drawn the line at revealing a blog when I am told by the blog's author -- or when they link to me, which indirectly tells me trough the referrals I get from their blog.

Is that right? I'm not sure, and my opinion on this is quite fluid.

Well, it took a 3,500-word NYTimes story and Kerry's hard-hitting speech to get Bush to do it, but President Bush denounced the ads being run by the Swift Boat Veterans For Truth against Kerry. Too little, too late, but it is an interesting development.

[UPDATE: See comments and Josh Micah Marshall for the reality of this announcement, which is much less of a denunciation of the Swift Boat ad than a denunciation of 527s. I wonder what Professor Volokh, who was concerned about White House Press Secretary Scott McClellan's anti-527 comments, thinks about this.]

[FURTHER UPDATE: Was Terry McAuliffe reading my blog again? This AP article suggests so:

"Too little, too late," added party chairman Terry McAuliffe.]

The corruption of one-party rule in Ohio is splashed on A1 . . . of today's edition of The Washington Post. Yes, the corruption reeks all the way to D.C., whose residents can smell corruption (apparently) six hours away. The article focuses, of course, on our state's two would-be kingmakers, Brett Buerck and Kyle Sisk, and their fund-raising, power-play shenanigans:

The accusations erupted onto Ohio front pages in the spring, and federal and state criminal investigations are underway. Ohioans have been treated to regular servings of leaked strategy memos and e-mails written by Buerck, Sisk and others in Householder's camp. With a swaggering tone, the documents suggest an approach to politics that borrows equally from H.R. Haldeman and Barney Fife.

Ha.

This is the fifth in a series of Post articles looking at Ohio's role in the election. The others can be found here, here, and here (but I can't find a working link for the first in the series).

I just got back from seeing "Garden State" and don't have the thrilled review I had gone in hoping to give. Don't get me wrong, a movie with Zach Braff ("Scrubs" and "Broken Hearts Club"), Natalie Portman ("Star Wars: Episode II"), and Peter Sarsgaard ("Shattered Glass") can't be bad, and this wasn't. Braff is a picture of a man coming to life, Portman is a hyper young woman full of love and in need of life, and Sarsgaard is simple personified.

Unfortunately, the movie had no point.

Great performances, even with great characters, do nothing without a purpose for us to be there. This is not a "slice-of-life" film either. It attempts a message, but it was either (I'm still not very sure and don't want to give anything away) a pointless one or a simple one. The result was that it just left me -- not with a confused, indie film feeling -- but with more of an "um, and???" feeling.

These were characters I grew to like (or at least like watching), but walking out of the movie all I could think was, "Why did I meet these characters?" The film was well-acted and well-directed, but Braff would have done well to have some help on the script. I'm hoping this was just a first-time flaw from Braff, who clearly had the writer's insight to introduce us to these very interesting people.

Bottom line: It was a pleasant couple hours meeting pleasant characters, but I know them already -- they're my friends. My time would have been better spent chatting with my friends in a coffee shop (which says quite a bit for those who know me and my addiction to Columbus coffee shops).

As I have in the past, I would like to keep a listing available on my blogroll of the bloggers here at Ohio State. If you are not listed, please let me know via comments or e-mail and I will add you. Also, I do know of other Moritz students who are blogging, but I can't quite tell if these people would want their blogs on the blogroll (since at least four of you don't have e-mail on your sites, I can't check). In any case, let me know.

Also, as the second Moritz blogger, I direct you to the original, Steve, one last time (before his disappearing act is complete), for his advice on blogging at Moritz. I asked him to do a follow-up to this classic, but being a lawyer and traveling the world have obviously taken away from his time to mingle with the common-folk. So, in the interim, one of Steve's snarkiest posts ever: So you want to be a Moritz blogger . . . (NOTE: I do not vouch for the incorrect statements Steve makes about exam software. He's wrong on that point, the stubborn, snarky shit.)

Campaigns, clerkships, and classes, oh my! It's been a weekend of working, figuring, and reading. Fun, fun, fun. There is, however, much that I would like to be writing about anf hope to do so soon.