Saturday, November 25, 2006

Changing the NACDA Directors' Cup Scoring System to Change the Winner?

In 1993, the National Association of Collegiate Directors of Athletics (NACDA) established the Directors' Cup to reward the best overall NCAA Division I (other divisions & the NAIA were added 1995) athletic program in the country. North Carolina won the first Directors' Cup in 1993-94; however, the twelve subsequent Division I cups have been won by my alma mater, Stanford University.

On November 1, the NACDA announced a new scoring methodology for the contest. At first glance, the new rules – scoring both indoor/outdoor track, scoring all sports for which the NCAA/NAIA offers a championship (a change required by a new Program Philosophy) – do not seem to harm Stanford's chances of continued dominance in this contest. However, I can't help but wonder why the NACDA would change the rules other than to unseat Stanford University (and Williams College, which has won 10 of 11 Division III cups) from the top of the standings. (Also, note that UC Davis would likely still be winning the Division II award had it not started migrating sports to NCAA Division I in 2003.)

The original sponsor the Directors' Cup, Sears, ended its sponsorship of the contest in 2003. The present sponsor is a much less high profile organization (The U.S. Sports Academy). Although I don't know why Sears terminated its relationship with the program, the annual standings for the contest tell the tale: No one cares about the Directors' Cup, for the end result is almost always the same. Since the contest appears practically predetermined, the media ignores it. Why would a retailer throw advertising dollars at a contest sponsorship when ESPN et al. do not amplify those dollars through coverage of the contest?

Don't get me wrong: I'm a Stanford partisan, and I grin a big, provincial grin whenever Stanford wins any contest. Yet, whether it be through a rule change or a rough year, it's clear that their string of consecutive Directors' Cups cannot last. If Stanford & Williams continue their dominance unabated, I wouldn't be surprised to hear one day that the NACDA has decided to stop expending energy and resources on tabulating a contest that is not a contest.

A Parting Note: The reality is that collegiate athletic programs change very little from one year to another, so it's not surprising that the same affluent school, interested in investing in teams in each and every arcane varsity sport, would win every year. Maybe the NACDA is taking advice from U.S. News & World Report, whose overall collegiate rankings appear to be based on a methodology that changes every year, even if the data measured (the excellence of one school compared to another) do not.

Thursday, November 23, 2006

If I Include "Second Amendment" in the Title of My Bill, Does that Make it a Proposed Amendment?

(Crossposted from the American Constitution Society :: Columbia Law School)

There are many reasons for Congress to consider legislation. One of the primary reasons for Congress to consider legislation is that it believes that the judiciary will not find the subject matter of the statute already protected by the Constitution.

Last Thursday, Lame Duck Virginia Senator George Allen proposed SB 4057, tentatively titled The National Park Second Amendment Restoration and Personal Protection Act of 2006. According to the current description of the bill, it would "protect the second amendment rights of individuals to carry firearms in units of the National Park System." If passed, it would permit a properly licensed individual to carry a concealed weapon in a National Park.

Of course, the bill's title and short description do nothing other than to obscure the bill's point and confuse debate. The Second Amendment doesn't grant you the right to carry a concealed weapon in the National Park System. That's why you're proposing this law.

Sunday, November 19, 2006

Failed Amendments We Have Known & Loved

(Crossposted from the American Constitution Society :: Columbia Law School)

Barring an unexpected Lame Duck attempt to amend the U.S. Constitution, Democratic control of Congress will probably result in a temporary moratorium on proposed amendments to the Constitution that would ban gay marriage or ban burning Old Glory.

Of course, the G.O.P. does not have a monopoly on converting a Congressional majority into failed attempts to amend the Constitution. During the next 2 years of their pending majority, if the Democrats need to find examples of entertaining failed attempts to amend the U.S. Constitution, history provides some real doozies.

In this post, we'll explore three prominent categories of failed Constitution amendments.

Zombie Amendments:
Approved, Not Ratified, No Expiration Deadline

Starting in the early 20th century, Congress began placing deadlines on the amendments it sent to the states for ratification. Typically, the states were given seven years to ratify an amendment. After the passage of the deadline, the proposed amendment would expire and Congress would need to start the process all over again to raise the issue. (In the past 50 years, two amendments expired after Congressional approval: the 1972 Equal Rights Amendment & the 1978 D.C. Voting Rights Amendment)

However, absent explicit sunset provisions, approved yet unratified amendments do not expire.1 Instead, they linger eternally, pending ratification. As shown with the 27th Amendment, an amendment which floated around for 200 years before finally being ratified in the 1990's, each of these amendments has the potential of becoming law.

Congressional Apportionment Amendment: This proposed amendment was the first of the original twelve amendments proposed to Congress (The original 2nd Amendment eventually became the 27th Amendment mentioned above). If passed, the amendment would have restricted the original size of the House of Representatives to 100 representatives, with later enlargements to be determined by Congress. From 1789 to 1792, 11 states ratified this amendment, leaving it two states short of ratification.

Titles of Nobility Amendment: Proposed in 1810, this amendment would strip U.S. citizenship from any citizen accepting, claiming, retaining, or receiving a foreign title of nobility without the consent of Congress.

Believed by some [See here and here. For a rebuttal, see here. (Apply salt liberally to the arguments on these web pages.)] to have been ratified and then supressed by a conspiracy of lawyers (who – so the theory goes – would lose their citizenship via their esquire title), this amendment was approved by 12 states, just one shy of full ratification. Since, at the time, it came within one house of the South Carolina legislature of being ratified, some 19th century printings of the Constitution erroneously include it as the 13th Amendment.2

Pro-Slavery Amendment: A last-ditch effort to avoid a civil war, this amendment – approved by the House and Senate on Februrary 28 & March 2, 1861, respectively – stated simply:
No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.
Apart from its subject matter, the language of this amendment raises an important issue in U.S. Constitutional theory: Can a Constitutional amendment prohibit a later amendment through an entrenched clause?

Although this amendment was ultimately ratified by Ohio and Maryland, neither legislature ratified it before the start of Civil War hostilities with the Battle of Fort Sumter on April 12, 1861.

Child Labor Amendment: Proposed in 1924 and ratified by 28 states, this still-pending amendment requires the approval of 10 more states in order to restrict to the federal government all power to regulate labor of persons under 18 years old.

This amendment is a direct reaction to the Child Labor Tax Case,3 which found Congress had overstepped the boundaries of the 10th Amendment with the scope of the taxes it placed on factories employing child labor.

Let's Remake America Amendments:
Ambitious Attempts to Change this Country

Had they been ratified, these proposed amendments would dramatically change the way our country works.No Way, José Amendments:
That's Just Crazy Talk

These proposed amendments were going exactly nowhere, but that's why we like 'em.

1 Coleman v. Miller, 307 U.S. 433, 454 (1939) (Finding that all amendments are considered pending before the states indefinitely unless Congress establishes a deadline within which the states must act.)

2 In Campion v. Towns, 2005 WL 2160115 at *1 (D. Ariz. 2005), a tax protester produced an 19th century archival copy of the Constitution incorrectly listing the Titles of Nobility Amendment as the 13th Amendment. Needless to say, the argument based on the existence of this document did not go very far with the Court.

3 Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)

4 354 U.S. 1 (1957)

Saturday, November 18, 2006

Found On The Internets: Parkour — A Beautiful Way to Break an Ankle

Watching a bunch of Russian guys experiment with the French-developed urban exploration sport of Parkour (also free running or Yamakasi) is a terrifying, hypnotic experience.

Spoiler: Don't worry, there aren't any terrifying leg-breaks.

Youtube: Parkour videos

Sunday, November 12, 2006

Non-Newtonian Fluid Meets Spanish TV

Some TV hosts walk on water (+ corn starch) in a 4' deep tub of fluid where the viscosity changes with the strain applied against the surface. Stabbing the surface with force causes it to behave like a solid. More gentle treatment leads it to behave like a liquid.


Wikipedia: Non-Newtonian Fluid

Friday, November 10, 2006

Pelosi '07

I think I'm going to wait until the T-shirt is available.
For the impatient, you can order your Pelosi '07 bumper stickers today.

Wikipedia: U.S. Presidential Line of Succession
Wikipedia: Impeachment in the U.S.

Thursday, November 09, 2006

To Borrow a Phrase from Russ Hodges...

The Donkeys Win the Senate! The Donkeys Win the Senate!

All we're waiting for now is for Allen to make his concession speech.

The Shot Heard 'Round the World (Listen to the .mp3)

Wednesday, November 08, 2006

Better 907 Days Late Than Never

On May 5, 2004, I predicted that Donald Rumsfeld would resign on May 15, 2004. For the next ten days, I wrote the Donniebrook — Rumsfeld Retrospective, a tour of the many facets of Donald Rumsfeld.

Donald Rumsfeld is resigning today. Back in 2004, I was a little optimistic regarding the Rumsfeld resignation timeline, but I'll cheer him turning in his badge anytime.

Bye, Donnie.

Donniebrook — The Rumsfeld Retrospective
5/5/2004 Donald Rumsfeld Will Resign in 10 Days
5/6/2004 Donald Rumsfeld: Diplomat
5/7/2004 Donald Rumsfeld: Lecturer
5/8/2004 Donald Rumsfeld: Father of Diet Soda
5/9/2004 Donald Rumsfeld: Executive Operator
5/10/2004 Donald Rumsfeld: Septuagenarian
5/11/2004 Donald Rumsfeld: Rulemaker
5/12/2004 Donald Rumsfeld: Shaolin Master (my favorite Rumsfeld)
5/13/2004 Donald Rumsfeld: Endlessly Inspiring Public Persona
5/14/2004 Donald Rumsfeld: Friend
5/15/2004 Donald Rumsfeld Should Resign Today

Monday, November 06, 2006

The Poor Voter on Election Day

(Crossposted from the American Constitution Society :: Columbia Law School)

The Poor Voter on Election Day
by John Greenleaf Whittier
December 23, 1852

The proudest now is but my peer
The highest not more high.
Today, of all the weary year,
A king of men am I!

Today alike are great and small,
The nameless and the known.
My place is the people's hall,
The ballot box my throne.

Who serves today upon the list
Beside the served shall stand;
Alike the brown and wrinkled fist,
The gloved and dainty hand!

The rich is level with the poor,
The weak is strong today.
And sleekest broadcloth counts no more
Than homespun frock of gray.

Today let pomp and vain pretence
My stubborn right abide.
I set a plain man's common sense
Against the pedant's pride.

Today shall simple manhood try
The strength of gold and land;
The wide world has not wealth to buy
The power in my right hand.

While there's a grief to seek redress
Or balance to adjust,
Where weighs our living manhood less
Than Mammon's vilest dust -

While there's a right to need my vote
A wrong to sweep away,
Up! Clouted knee and ragged coat -
A man's a man today!
Today, when voters across America cast their vote for their representative in the House of Representatives, they exercise the only voting right granted to them by the Constitution, the Senate being chosen by state legislatures until 1913, and the President chosen by The Electors.

(Yes, I realize this poem is a repeat of a post from 2 years ago, but I can't help myself. It's one heck of a swell poem.)

I Only Think About It During Those Minutes In Which I Breathe

Today, I'm thinking about tomorrow's election in the same way that Cosmopolitan believes men think about sex.

Friday, November 03, 2006

Indication #63 That It's a Rough Election for Republicans: President Bush Visits My Hometown

President Bush is holding a rally in my hometown on Saturday Sunday, 72 48 hours before the election.

"So what?" you say, "President Bush visits a lot of hometowns."

Well, my hometown is Grand Island, Nebraska, the largest town/city (45,000) in Nebraska's 3rd Congressional District. Since 1961, the 3rd District has been represented in the House of Representatives by a Republican. However, a recent poll (apply salt liberally) had Democrat Scott Kleeb leading Republican candidate Adrian Smith by 6 points.

Thus, Bush is forced to visit and glad hand in a district where he carried 75 percent of the vote last presidential election.

Wanna counterbalance the POTUS's last-minute stop in Grand Island, Nebraska? Give some money to Scott Kleeb.

Thursday, November 02, 2006

The Longest Case in U.S. History:
The Myra Clark Gaines Case

(Crossposted from the American Constitution Society :: Columbia Law School)

At the present moment (August, 1853) there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time, in which costs have been incurred to the amount of seventy thousand pounds, which is A FRIENDLY SUIT, and which is (I am assured) no nearer to its termination now than when it was begun.
Charles Dickens, Preface to Bleak House (1853)

The case had been frequently before this court in various aspects; first, in 13 Peters, 404, then in 15 Peters, 9, 2 Howard, 619, 6 Howard, 552, 15 Howard, 473. In some of these reports large extracts are made from the record, illustrating the points of law and fact then under consideration, and also the evidence in support of them. All of this past history was brought again to the notice of the court in the argument of the present case, which cannot be again recited in the present report. The reader who wishes to understand all the points which are discussed in the opinion of the court must turn back to the preceding volumes above cited, and follow the case through its successive developments. He will then be able to appreciate the concluding remark in the opinion of the court, which is as follows:

"When hereafter some distinguished American lawyer shall retire from his practice to write the history of his country's jurisprudence, this case will be registered by him as the most remarkable in the records of its courts."
Gaines v. Hennen, 65 U.S. 553 (U.S. 1861) (reporter's note) (emphasis added).1
As he was writing Bleak House over the course of 1852 & 1853, Charles Dickens was aware of numerous cases mired for decades in the Courts of Chancery. Although his case of Jarndyce & Jarndyce was fiction, he knew the plodding reputation of the English courts at the time would make his case appear real to his 19th Century British audience.2

What Dickens probably did not know at the time, was that on this side of the Atlantic a woman named Myra Clark Gaines had already been pursuing a claim to an estate for almost twenty years.

What Dickens could not have known at the time was that the Gaines Case would continue for almost forty more years, becoming the longest case in the history of the U.S. judiciary. Her case, originally filed in 1834 would not be fully resolved until 1892, almost sixty years later.

Beginning with her first lawsuit in 1834 and culminating with New Orleans v. Whitney in 1891,3 the Supreme Court of the United States heard issues concerning the Gaines case an astounding sixteen times,4 and the Louisiana Supreme Court heard the case eight times.5

What was at issue in the Myra Clark Gaines Case?

For the answer, we turn to Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines, a 300-page biography of Ms. Gaines published in 2001:
The events that formed the basis for the Gaines case began in 1787 when Daniel Clark arrived in New Orleans to join his uncle, Colonel Daniel Clark, in business. Ten years later, Colonel Clark conveyed all of his extensive property in Louisiana to his nephew, and at the age of thirty, Daniel Clark found himself one of the richest men in North America.

Clark's many business ventures brought him large revenues that he invested primarily in New Orleans real estate. During the early years of the nineteenth century, as he established himself in New Orleans as "a man of much personal pride and social ambition," Clark became romantically involved with a young Frenchwoman. All accounts of Zuileme Carrière emphasized her extraordinary beauty, vivacity, and charm, and both sides of the lawsuit admitted Clark's fascination with her.

Myra, daughter of Clark and Carrière, later came to believe that her parents had contracted a legal, though secret, marriage, making her the true heir to Clark's fortune. As she grew up, however, she was raised by friends of Clark and kept in ignorance of her real parentage as well as of her father's death in 1813, when she was nine.

Nearly twenty years afterward, Myra and her young husband arrived in New Orleans with a tale of a lost will and a claim that she was the true heir. Few believed her story. For the rest of her life, as a young wife and mother, as the third wife of a prominent general, and as a widow, Myra Clark Gaines pursued the vindication of her "rights."6
Besides its longevity, the Gaines case is legally interesting for a number of reasons. First and foremost, the Gaines case is a case about antebellum federal power — particularly about the scope of federal power in a state jurisdiction governed by civil law. Moreover, the case concerns the use of federal equity jurisdiction to govern a matter of domestic relations, an area where today's federal courts are loathe to exert their influence.7

Many of the appeals in the case reflect the reticence of courts sitting in Louisiana — even federal courts — to apply federal equity jurisprudence.8 The parties opposing Ms. Gaines (protecting the estate of her father) frequently argued before the court that equity had no place in Louisiana. In Gaines v. Chew, one of their many SCOTUS appeals, the estate administrators maintained that federal equity jurisprudence constituted "foreign law" inapplicable in the equity-free zone of Louisiana.9

In 1885, Ms. Gaines died, 6 years before the case came to its ultimate conclusion in her favor. After winning the final case before the U.S. Supreme Court the year before, on July 26, 1892, the administrator of her estate received a check for $923,788 from the city of New Orleans (which had received the Clark estate), ending the litigation.10 As you'd expect, creditors had significant claims against this sum, and little remained for the Gaines heirs to divide up.

If you want to know more about the Gaines case, I encourage you to check out Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines or (if you don't want to leave the friendly confines of Westlaw or Lexis) check out Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of State's Rights by Kristin L. Collins. 26 Cardozo L. Rev. 1761 (April 2005).

1 Justice James Moore Wayne – writer of the opinion cited by the above reporter's note – would die 6 years later in 1867, 24 years before the Myra Clark Gaines case would finally culminate in 1891.

2 Dickens not only succeeded in capturing the attention of a 19th Century British audience — he suceeded in capturing the attention of the modern U.S. judiciary. An unrestricted Westlaw search for "Jarndyce" among U.S. state and federal cases returns 254 results, including 3 SCOTUS references (most recently, Hartman v. Moore, -- U.S. ---, 126 S.Ct. 1695, 1701 (2006)

3 138 U.S. 595 (U.S. 1891)

4 U.S. Supreme Court Cases — Myra Clark Gaines
Ex Parte Whitney, 38 U.S. (13 Pet.) 404 (1837)
Gaines v. Relf, 40 U.S. (15 Pet.) 9 (1841)
Gaines v. Chew, 43 U.S. (2 How.) 619 (1844)
Patterson v. Gaines, 47 U.S. (6 How.) 550 (1848)
Gaines v. Relf, 53 U.S. (12 How.) 472 (1852)
Gaines v. Hennan, 65 U.S. (24 How.) 553 (1861)
Gaines v. New Orleans, 73 U.S. (6 Wall.) 642 (1868)
Gaines v. De La Croix, 73 U.S. (6 Wall.) 719 (1868)
Gaines v. Fuentes, 92 U.S. 10 (1876)
Smith, et al. v. Gaines, 93 U.S. 341 (1876)
Davis v. Gaines, 104 U.S. 386 (1881)
New Orleans v. Christmas, et al., 131 U.S. 191 (1889)
New Orleans v. U.S. ex rel. Christmas et. al.
, 131 U.S. 220 (1889)
New Orleans v. Whitney, 138 U.S. 595 (1891)

The district & circuit court cases involving Myra Clark Gaines are far too numerous to detail here, but information regarding them is available in the Bibliography of Elizabeth Urban Alexander's Notorious Woman: The Celebrated Case Of Myra Clark Gaines, the text of which is searchable at

5 Louisiana Supreme Court Cases — Myra Clark Gaines
Barnes v. Gaines, 5 Rob. 314 (1843)
Succession of Clark, 11 La. Ann. 124 (1856)
Clark's Heirs v. Gaines, 13 La. Ann. 138 (1858)
De la Croix v. Gaines, 13 La. Ann. 177 (1858)
Van Wych v. Gaines, 13 La. Ann. 235 (1858)
Fuentes v. Gaines, 25 La. Ann. 85 (1873)
Foulhouze v. Gaines, 26 La. Ann. 84 (1874)

6 Elizabeth Urban Alexander, Notorious Woman: The Celebrated Case of Myra Clark Gaines 3 (2001)

If you're at Columbia Law School, the Arthur Diamond Law Libary has a copy of Notorious Woman available for checkout. Its call number is KF759.C57 A43 2001.

7 For a detailed analysis of the use of federal equity power in the Myra Clarke Gaines case, check out Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of State's Rights by Kristin L. Collins. 26 Cardozo L. Rev. 1761 (April 2005)

8 Two of the Supreme Court appeals — Ex Parte Whitney, 38 U.S. (13 Pet.) 404 (1839) & Gaines v. Relf, 40 U.S. (15 Pet.) 9 (1841) — reversed lower federal courts sitting in Louisiana when those courts refused to apply equity to cases that they believed should have arisen under civil law, where equity was unavailable.

9 43 U.S. at 650 ("Complaint is made that the federal government has imposed a foreign law upon Louisiana. There is no ground for this complaint.").

10 The Gaines Case Settled; Some of the Claims to be at Once Paid by the Administrator, New York Times, July 27, 1892, at 1.

Wednesday, November 01, 2006

The GOP Thinks You're Dumb

Although he was speaking before the John Kerry flap started, Mark Shields laid the groundwork for this potential Democratic strategy on the Newshour with Jim Lerher last Friday. It's just about the only thing the Democrats should be saying at this point. ...and the Democrats should be shouting it from the mountaintops:

     Americans, Republicans think you're dumb.

They think this election can be converted into a referendum on John Kerry, a Democrat who is not running for office during this election.

Why do they think this? Well, it's because:

As Wonkette noted today:

John Kerry is not funny. Neither is the situation in Iraq that Republican candidates are distancing themselves from.
They Think You're Dumb, America.
The GOP Thinks You're Dumb.

They think that, with 120 hours left, you'll make this election about a verbal miscue from a Democratic politician WHO IS NOT RUNNING FOR OFFICE THIS YEAR.

Remember: They think this because, They Think You're Dumb.

On Election Day,
they think you'll look past their bungling of Iraq,
they think you'll look past their sordid misdeeds,
they think you'll look past their influence fire sale.
They think this because:

They Think You're Dumb