Individual Right to Bear 1791 Arms

In the shadow of the horrible, yet not shocking, tragedy in Aurora, Colorado, I keep thinking back to my proposal on the topic back in November 2007.

So long as SCOTUS is going to find that the Second Amendment is an individual right to bear arms (not a reaffirmation of the militia right), my view remains that the most workable solution for the demands of our modern society is some rather extreme originalism and federalism — the Second Amendment should protect an individual right to bear as such arms existed at the time of the ratification.

Let the states choose if they want to have gun rights beyond this basic backstop.

November 27, 2007 Sauntering - The Right to Bear Ye Olde Arms

Awwwkward

I once had a boss who occasionally asked us to do things that we'd really rather not do. For example, he once asked my co-worker to fight a parking ticket for him.

I was reminded of this by a copyright case in which the Supreme Court will hear oral argument tomorrow, Reed Elsevier Inc., et al., v. Muchnik, et al. (08-103). As happens occasionally, the Court rejected the issues presented by the petition for certiorari and wrote its own instead. What is far more curious, however: all the parties are on the same side of the issue the Court decided to hear — they are all against the Second Circuit's ruling on it.

So the Court got Ohio State law professor Deborah Jones Merritt to argue that side. I can just imagine that phone call:

PROF. MERRITT: Hello?

C.J. ROBERTS: Howdy Professor, this is John Roberts!

PROF. MERRITT: The Chief Justice?

C.J. ROBERTS: That's the one.

PROF. MERRITT: Oh, um, ah, hello your Honor. How may I help you?

C.J. ROBERTS: Well, see, we've got this case. We're thinking about granting a writ of certiorari, but, I'll be honest, these guys kinda missed the boat with their petition.

PROF. MERRITT: I see . . . . I don't want to tell you how to do your job, but couldn't you just deny the petition?

C.J. ROBERTS: Welllll, yeeaaaah, I suppose. But the case implicates a pretty important question they didn't raise.

PROF. MERRITT: That makes sense. Well, you're the Supreme Court! You can write the question yourselves, right?

C.J. ROBERTS: Exactly! That's what I keep telling everybody.

PROF. MERRITT: So what's the problem?

C.J. ROBERTS: Well, don't tell anyone, but we kinda want to reverse the Second Circuit.

PROF. MERRITT: So?

C.J. ROBERTS: The problem is, all the parties want us to reverse the Second Circuit on our question, too.

PROF. MERRITT: Oh, that is tricky.

C.J. ROBERTS: So . . .

PROF. MERRITT: Yes?

C.J. ROBERTS: Wouldja mind arguing the other side?

Just like my co-worker, who dutifully fought our boss's parking ticket, Professor Merritt couldn't bring herself to say no.

Good luck tomorrow, Professor!

O Court, Please Leave Room for Great Use

It's been a long time since I've ruminated on the fair use copyright standard for video sharing websites, but whatever standard the court settles on, I hope they make room for fan-made music videos that I find amazing:

Death Cab for Cutie - Little Bribes from Ross Ching on Vimeo.

The Toilet Won't Stop Running. Consider Yourself Sued.

After Kramarsky v. Stahl Management, 92 Misc.2d 1030, 401 N.Y.S.2d 943 (N.Y.Sup. 1977) – where a landlord refused to rent to a woman because she was a lawyer – New York City amended its landlord/tenant law to prohibit discrimination on the basis of a "lawful occupation."

California has no such bar on discriminating on the basis of a "lawful occupation." Of the roughly 10 places we applied to before finally signing a lease for a house last night, fully a third of them expressed reservations to renting to a couple where both people were lawyers.

Why were they so worried? We should sue them. ALL OF THEM.

This Way to the Bar Exam

Google Maps driving directions to the bar exam from my father-in-law's house.

"The bar exam is a complete waste of time and resources," a fellow student said to me while we both were studying for last week's terminal law exam. "It's a drag on the economy." A law graduate's time was better spent, he said, on something – anything – other than a test that required each graduate to review the basic framework of so many areas of the law. (In California, an applicant can be tested on 17 subjects. In New York, it's 21.)

Critics of the bar exam see it as little more than a protectionist measure. By forcing new lawyers to jump through a challenging set of hoops, the state bar accomplishes two goals. First, it limits the number of new lawyers, thereby hampering competition and raising prices. Second, the bar uses the exam (and other legal entrance requirements) to deflect criticism without actually improving the profession. Want to make lawyers more ethical? Well, one way to try to do so is to raise the lowest acceptable score on the MPRE (the Multistate Professional Responsibility Exam, a pre-bar exam test for law students), as California did this January. Because, of course, unethical students couldn't learn legal ethics for the purposes of a multiple choice exam. Of course they couldn't.

I've taken a lot of standardized tests in my day: LSATs, SATs, ACTs, an AP exam or two. The bar exam was the first such test I've taken where the body giving the test makes it abundantly clear that they are NOT on your side. The bar exam is inflicted on would-be lawyers by current lawyers, with all the care of a fraternity paddling.

You hear stories of the guy who forgot to turn off his cell phone and was bounced out of the test. The chief proctor remains you again and again that various minor misdeeds – for example, getting up to go to the bathroom during the last 5 minutes of any of the six 3-hour sessions – will result in the administration an Orwellian sounding Rule 12 Violation. The test is capricious, spiteful, and arbitrary, and it's a damn shame that it has such a profound negative economic effect on so many people who graduate law school only to struggle to pass the bar.

Yet, the bar is a necessary evil on two fronts.

1) It's good to force every lawyer to look deeply into a varied set of subjects. Out of the subjects that could have been tested last week, I knew practically nothing about criminal procedure, wills, trusts, community property, or partnerships prior to studying for the exam. Beyond these unknown areas, most of the other subject areas were topics that I'd studied during the first year of law school, only to never think about again.

I'm joining a law firm this fall that has a narrow and specialized practice, focusing exclusively on securities work and other corporate matters for start-up companies and venture capitalists. Of the 17 areas I studied like mad for the bar exam, only three (contracts, corporate law, and partnerships) will be applicable in the job that I'm about to begin.

Yet who knows what the future holds for my (or any one else's) legal career? Much as I think I'll enjoy this new job, I may someday find myself doing divorces, handling real estate transactions, helping someone plan their estate, or arguing a constitutional claim. Who knows?

What's for sure is that my friends will know that I'm a lawyer and, in a pinch, they're not going to care what kind of law I practice. They'll want me to provide them 30 seconds of counsel regarding their divorce, their home purchase, their arrest. And even though the best advice I could give them would be to usher them toward someone who is experienced in their particular problem area, it'll be helpful for me to have at least a baseline understanding of what they're facing.

Does the bar need to make the exam so onerous to accomplish the goal of making sure each lawyer has a sufficiently broad understanding of the law? No — they could make the second year curriculum as rigid as the first year, insuring that each student took the bar exam courses, even at the cost of studying areas of the law they find interesting. But a softer test with more required courses is not going to happen because of the next point.

2) Law schools – at least my law school – are rather lax about quality control. I went to law school with some of the most intelligent, hard-working people I've ever met. I also went to law school with some of the most unrepentant slackers I'll ever hope to meet.

As I noted a few months back, if you make it to the final semester of 3L at my school, you're practically guaranteed to graduate. Even prior to passing this graduation event horizon, the degree to which people skate by, er... customize law school to their own needs is really amazing.

To pick one area where people are permitted to graduate while phoning it in, let's look at lecture attendance. Sure, the ABA paternalistically requires perfect attendance from law school students. Yet, (in my experience) such a rule is only enforced by hollow threats and mock professorial scorn. The Socratic method means calling on students each class, and there were a set of names that I got used to hearing in law school that just weren't connected to people. Listening to the optimistic and naive professor calling their names reminds me of the words of the great philosopher Mitch Hedberg:

When you go to a restaurant on the weekends and it's busy, they start a waiting list. They start calling out names, they say "Dufrane, party of two. Dufrane, party of two." And if no one answers they'll say their name again. "Dufrane, party of two, Dufrane, party of two." But then if no one answers they'll just go right on to the next name. "Bush, party of three."

Yeah, but what happened to the Dufranes? No one seems to give a shit. Who can eat at a time like this — people are missing. You fuckers are selfish... the Dufranes are in someone's trunk right now, with duct tape over their mouths. And they're hungry! That's a double whammy.

We need help. Bush, search party of three! You can eat when you find the Dufranes.

Granted, having attended almost all the assigned classes during law school, I can see why people don't come. On occasion, class took on the feel of oral argument before the Supreme Court: It was an exercise that is just for show, because the result is determined on the basis of other factors. Just as the justices make up their minds on the briefs, if you've already made you mind up regarding a case's holding after reading it, class just might confuse you.

Naturally, the basic problem with the I-don't-need-to-go-to-class attitude is that you are never the problem, it's always the other guy. They might need to go to class to really master the material, but you're past that. You get it. It's not your problem.

It's the reliance on donations – donations that come from graduates, not drop-outs – that provides the systematic impetus for pushing people through law school who are incapable or uninterested in pulling themselves through. Yet, the bar exam doesn't have any such conflict. It's not going to cut you any slack, applicant.

The bar exam is a train wreck, and the test could be administered far more equitably. If the goal of the exam is to insure lawyers have at least a basic level of knowledge in the tested areas, I'd prefer that they test ALL the areas every year, instead of only rotating through essay topics, thereby testing a fraction of what you've studied and forcing you into the dangerous game of guessing the content of this year's test.

I disagree with my fellow classmate who saw the exam as little more than a waste of time. Despite the frailties of the test itself , the sixty day frantic review that precedes it produces social value by creating more generalists and offering law school slackers a chance at redemption.

"The bar exam only tests one thing," a future co-worker of mine said earlier this summer. "It tests whether you can set aside your regular life in the service of a big project." That's about right.

Some Heroic Moments for this Independence Day

At some point, our society began holding lawyers in low regard. This cultural contempt goes beyond despising the relatively more affluent or detesting ambulance chasers.

As I navigated my way through law school, it occurred to me that one of the primary sources of frustration against lawyers is our frustration with society itself. Our society – like any developed society – can be a morass of regulations and requirements, limitations that are (at least in theory) designed to protect us from ourselves and others. Since we can't lash out against this faceless system, we choose to vent our frustration at those who seem to guard the gates to this machine.

Although going to law school means choosing to become one of these social pariahs, most (many?) would say it was worth it. On this Independence Day, I want to celebrate a hidden benefit of law school. Although law school's tour of legal history reveals more than a few legal villains, it also uncovers a number of legal heroes.

Here are a couple lawyerly actions that I first learned about in law school and which make me proud to be an American today. The first is heroic for its effect, if not its intent. The latter, for both.

1. President Dwight D. Eisenhower on September 8, 1953: Chief Justice Fred Vinson died on September 8, 1953, after the rehearing of Brown v. Board of Education had been reordered but not heard.
   
   Had Vinson survived to rule on Brown's rehearing, Justice Felix Frankfurter believed there would have been 4 dissenters. According to legal legend, Frankfurter remarked that Vinson's death was "the only evidence I have ever had for the existence of God," for it permitted the nomination of Earl Warren to replace him on the bench.
   
   At Vinson's death, Eisenhower kept a promise to then California governor Earl Warren to nominate him to the first available seat on the Supreme Court. With Warren at the helm, the Supreme Court unanimously ruled in Brown's rehearing that separate but equal facilities were unconstitutional.
   
   Though Eisenhower would go on to consider his nomination of Warren to be a mistake, Eisenhower's promise to Warren led to the creation of the Warren Court and the dramatic expansion of civil rights in the decades that followed.


2. Senator Clair Engle on June 10, 1964: The Civil Rights Act of 1964 was filibustered in the Senate for 57 days and its passage looked uncertain.
   
   California Senator Engle, who had been struggling with brain cancer since 1963, returned to the Senate floor on June 10, 1964, to participate in the vote to end debate. Unable to speak due to his advanced cancer, Senator Engle pointed to his eye to indicate "aye" as his name was called in the roll-call vote. Engle's vote ultimately was one of the deciding votes, as cloture was met, ending the filibuster and permitting the Civil Rights Act of 1964 to become law.
   
   Clair Engle died one month later.

Unequal Amendments

All men may be created equal—but not all laws are.

Since the ratification of the U.S. Constitution in 1787–90, the venerable document has been amended 27 times, but from a legal point of view not all of these amendments are equally important. Some amendments, such as the First Amendment’s guarantee of free speech, come up again and again in judicial opinions and legal scholarship. Other amendments, such as setting January 20 as the date of presidential inaugurations (the Twentieth Amendment), have rarely come up in litigation or commentary.

Having just graduated from law school, we here at Sauntering decided to produce a visual representation of the vast differences in relative importance of the amendments. What follows is a picture of all amendments written out in a font size corresponding to the relative citation frequency in Supreme Court and federal appellate court opinions. (To get a larger version, click on the image.)

Bill of Rights (First 10 Amendments)

All 27 Amendments

Our Methodology

To get the number of citations of each amendment, we searched AltLaw for “First [Second, etc.] Amendment” and “1st [2nd, etc.] Amendment.” This strategy means that we missed citations to “Eighth and Fourteenth Amendments,” etc.

Furthermore, although AltLaw’s database contains all U.S. Supreme Court opinions back to 1791, it contains only those U.S. Court of Appeals opinions published since 1950. Therefore, we have attempted to account for this by adjusting the citation numbers for the post-1950 amendments.

To deemphasize the immense citation difference between the major and minor amendments, we made the font sizes proportional to the square roots of the citation numbers.

For those readers with more than a passing interest in this little project, feel free to check out our raw data [Google Doc].

A final note: Although I came up with the idea of representing the amendments with font sizes, Sauntering founder and co-blogger Andy did the heavy lifting to research the amendment frequencies and come up with the visual display. Kudos to Andy!

Goodnight nobody Goodnight mush

I think it's my current familiarity with the original that makes this parody seem so entertaining. There's a look-inside preview of the book on the site and they've done a good job of copying the meter and the imagery of the children's classic.

This book appears to skirt the unprotected realm of satire, and I'm not sure that a suit on the book would come out differently than Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997), where the court found that a book using the imagery of Dr. Seuss to riff on the O.J. Simpson trial constituted copyright and trademark infringement. Alternatively, a court might find the send-up of Goodnight Moon to be direct enough to qualify as a fair use parody under U.S. copyright laws.

If there were a lawsuit pitting the owners of Goodnight Moon against Goodnight Bush, it wouldn't be the first time that disharmony visited the Goodnight brand. The most recent scrape occurred in 2005, when HarperCollins faced a minor bookseller revolt after the 60^th anniversary edition of the book included an image of illustrator Clement Hurd on the book jacket with a cigarette airbrushed out of his hand.

A Toast to the Constitution: Temperance, A Benevolent Creator/Brewmaster, Happiness & Avoiding the Gout

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

Here's the toast from the 222^nd Annual Constitutional Law Mixer, held at Columbia Law School on February 4, 2008. As in years past, the event was jointly hosted by the local chapters of the American Constitution Society, the Federalist Society, and the Constitution Law faculty here at Columbia.

First, I want to thank ACS & FedSoc for inviting me to give a toast at the 222nd Annual Constitutional Law Mixer. It's an honor to be a part of a tradition that predates both interchangeable parts and modern plumbing.

As Chancellor Kent was known to say: "Our annual Con Law Mixer? Yeah, that's kind of a big deal."

---

Back in May of last year, I stumbled across Robert Harris's review of the Barbara Holland book The Joy of Drinking. In Harris's review, he noted Holland's research into the role alcohol played in the creation of the United States Constitution. Harris writes that:

[I]n 1787, two days before their work was done, the 55 delegates to the Constitutional Convention “adjourned to a tavern for some rest, and according to the bill they drank 54 bottles of Madeira, 60 bottles of claret, 8 of whiskey, 22 of port, 8 of hard cider and 7 bowls of punch so large that, it was said, ducks could swim around in them. Then they went back to work and finished founding the new Republic.” Note the 55 delegates and 54 bottles of Madeira. Which founder was slacking?

PG, a recent CLS graduate and the only person I know whose Constitutional leanings led her to be an active member of both ACS and the Federalist Society, speculated that Thomas Mifflin – at the time the sitting President of Pennsylvania and a Quaker prior to his expulsion for serving in the Continental Army – was the teetotaler; however, given the amount of drink involved, it's unsurprising that the identity of the true abstainer would be lost to history.
Perhaps it was the drink, but there's so much about the Constitution that's been lost to history, so much that the Founders forgot to tell us about the meaning and the crafting of this founding document:

• Dear Founders, is that a comma, a semi-colon, or a fleck of dirt?


• O Breech-pants-wearing Founders, is the office of the Vice President firmly seated within the executive branch, or is it an extra-constitutional floater, like the extra outfielder in a game of slow-pitch softball?


• O Founders, did you really believe that human nature would permit the loser of the Presidential election to serve as a good Vice-President to the winner?


• Founders, why-oh-why did you decide to capitalize nearly every noun in the Constitution? ...and what's the deal with the handful you didn't capitalize? (...and 1L's: That's a gangbuster note topic, by the way.)


• O Founders, are there secret messages in your tortured and inconsistent spellings?

Ultimately, we just don't know the answers to any of these vital questions, so we're left to make like the founders and drink a little Madeira, claret, whiskey, port and hard cider — maybe that will bring some clarity. (Incidentally, I was told that this event would have a bowl of punch so large that ducks could swim in it. Maybe that's coming later.)

In finishing my toast and finally raising a glass, I want to end with a meditation.

Let's meditate upon how the Constitution would have looked if Ben Franklin had had more creative control over the text. After all, historians report that when Thomas Jefferson sent Franklin a draft of the Declaration of Independence containing the line "We hold these truths to be sacred and undeniable," Franklin returned it to him with the last three words crossed out and replaced by "self-evident." Surely the person responsible for this memorable and meaningful term into the Declaration of Independence could have helped us more with the Constitution. (By the way, for those of you who are measuring the productivity of your lives against the lives of the Founders or choosing your political candidates on the basis of age, please note that Thomas Jefferson was all of 33 years old when he helped draft the Declaration of Independence.)

Now, I happen to know what Franklin would have done if he'd had his way with our overly short & oft-confusing Constitution. He would have included two final clauses.

In fact, I know which clauses Franklin would have inserted.

Truth be told, I find the tension between these two clauses to be roughly analogous to the on-going dialogue that occurs between the Federalist Society & ACS.

The first clause is a quote of Franklin's, taken from Poor Richard's Almanack, 1734. To me, this is the Federalist Society clause: "Be temperate in wine, in eating, girls, and sloth, or the gout will seize you and plague you both."

The second clause does not appear in any published writing of Franklin's, but has been broadly attributed to him. Naturally, the lack of textual basis for this quote (and its feel-good character) makes it more appropriate for ACS. The clause is: "Beer is proof that God loves us and wants us to be happy."

So please join me in raising a glass: Here's to Franklin, to the other Founders, to their strange and wondrous Constitution, to ACS, to the Federalist Society, to being happy, and – above all – to trying our best to avoid the gout.

CHEERS!

The Right to Bear Ye Olde Arms

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

The ACS/Federalist Society sponsored discussion/debate on DC v. Heller – the first SCOTUS case since 1939 to address the meaning of the Second Amendment – won't begin for another 2 hours, but I am prepared to upstage the speakers by offering a workable solution for Second Amendment jurisprudence in the 21^st Century.

Although the language of this amendment provides infinite grist for the mill of constitutional interpretation, my solution focuses exclusively on one word: arms.

My proposal: The Second Amendment protects an individual right to bear arms as such arms existed at the ratification.

Arms in 1791

Let's look at arms – specifically, guns – as they existed at the time of the ratification.

Guns in 1791 WOULD

• ...be made by a gunsmith.
• ...have rudimentary rifling.
• ...be single-shot weapons.
• ...be loaded through the muzzle.
• ...fire by means of a flintlock.

Guns in 1791 WOULD NOT

• ...have interchangeable parts. (Popularized in 1798)
• ...be revolvers. (Invented in 1835)
• ...be breachloaded. (Popularized in 1810)
• ...use smokeless powder. (Invented in 1885)
• ...use a percussion cap, necessary for modern cartridged bullets. (Invented in 1842)
• ...load bullets from a clip. (Invented in 1890)
  

Courts can't wish the Second Amendment away, but they can construe it in a manner that works in today's society.

Arthur Goldberg, the little-remembered Supreme Court Justice who sat on the bench from 1962 to 1965, has been long-derided by social and political conservatives as something of a fool due to his concurrence in Griswold v. Connecticut, where he found a right to privacy in the Ninth Amendment. Lately, these same conservatives have been quoting and paraphrasing Justice Goldberg when they say things like "while the Constitution protects against invasions of individual rights, it is not a suicide pact," a line Justice Goldberg included in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-60 (1963). Applying an admittedly severe form of originalism to cabin the Second Amendment prevents the kind of suicide pact that Goldberg was worried about.

Michelle Obama created a bit of a stir earlier this week when she talked about how the need for guns might vary regionally within the United States. A backstop interpretation of the Second Amendment – one that only protects the individual right to bear arms as they stood in 1791 – permits states to develop right to bear arms appropriate to their circumstances.

Suing God: Jurisdictional Purgatory? (Part II)

God has apparently answered the complaint and is – you guessed it – disputing jurisdiction.

The manifestation of the divine legal writ out of the ether brings new meaning to the phrase special appearance.

Earlier: Suing God: Jurisdictional Purgatory?

Suing God: Jurisdictional Purgatory?

To make a point about frivolous lawsuits, Nebraska state senator Ernie Chambers is suing God.

Although such a case might have political or social merits, my first thought was that a cheeky court willing to hear Chambers would come to the same conclusion as the court in Gerald Mayo v. Satan and His Staff, where a Pennsylvania court found that it lacked jurisdiction over Satan (who was being sued), as the defendant was "a foreign prince" probably beyond that court's jurisdictional reach.

It occurs to me, however, that suing God might present a different set of jurisdictional issues than suing Satan. I'll merely get the conversation started and hope that you all can expand it via the comments:

• Foreseeability: Here the omniknowledgeability (yes, I shall create that word) of The Almighty works against He/She/It if He/She/It wants to avoid lawsuit in Nebraska. Even if God is a non-resident of Nebraska (naturally, you'd need to test for domicile to determine its status), the ability of God to foresee that its actions would cause in-state injury could subject it to Nebraska's jurisdiction under Calder v. Jones, 465 U.S. 783 (1984). Of course, Chambers's complaint would still need to arise out of these Nebraska-directed-Almighty actions, as Calder concerns specific personal jurisdiction. To satisfy the broader general personal jurisdiction standard, God's actions would need to satisfy the continuous and systematic contacts that SCOTUS reiterated in Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984).


• One Person, All Persons? If we're talking about a Triune God, it's unclear to me whether getting jurisdiction of One Person is sufficient, or whether jurisdiction of all Three Persons must be obtained. Since tag jurisdiction – transient jurisdiction where notice is served on a party while that party is physically in the jurisdiction (e.g. visiting friends) – does not apply to corporations, an analogous jurisdictional limit might apply to a deity with multiple instantiations. See Burnham v. Superior Court, 495 U.S. 604, 609 n.1 (1990).


• Book of Mormon Connection? Although various Mormon scholars believe that the Book of Mormon describes God as physically present in the Great Lakes region several hundred years ago, it is unclear if God was physically present in Nebraska at this time, or whether these corporeal contacts should even factor in to determining jurisdiction several hundred years later.


• Other jurisdictional possibilities are out there, – Agency Law, Foreign Relations, etc. – so please feel free to add them in the comments section. Also note that Australian cinema has already addressed this question.

Many thanks to Dan & Colin for many of the above points. Where the points sound inspired, that's them. Where they sound insipid, that's me.

Update (9/21/07): God has answered the complaint and is disputing jurisdiction.

Ogden's Ode to the Boys I Loathe

You're able to quote copyrighted works
without being dragged into court,
but it's hard to legally quote a poem
because a poem is short.

I quote the passage that comes below
not to take away this poet's money.
I quote the poem that follows below,
because it is true, and funny.

My heart leaps up when I behold
A rainbow in the sky;
Contrariwise, my blood runs cold
When little boys go by.
For little boys as little boys,
No special hate I carry,
But now and then they grow to men,
And when they do, they marry.
No matter how they tarry,
Eventually they marry.
And, swine among the pearls,
They marry little girls.

from Song To Be Sung by the Father of Infant Female Children by Ogden Nash

Although I link to the full poem, it – like other poems similarly situated (published before 1978 with copyright notice, renewed with the copyright office, etc.) – is covered by U.S. copyright for 95 years from the point of publication.

Drama Chipmunks/Prairie Dogs & the DMCA

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Neither Here Nor There

This is neither here nor there, but sometimes you take a photo with your cameraphone and you wouldn't change a thing.



This sign is posted near the main gates at Columbia University, warning someone that something is illegal somewhere.

Call Me Crazy, But I Don't Think You Need to Define That

Sometimes when lawyers start defining terms, they don't know when to stop.

Witness § 416(i)(2) of the tax code:

My Teacher, Richard Rorty (1931 - 2007)

One of my friends has a strange job. He works for a broadcast television network, crafting obituaries for people who are still alive. Now, as I try to cobble together a few words on Richard Rorty, the person who changed the way I see the world more than anyone else (outside my family), I realize why they write these things ahead of time.

I'm going to write about the second time Richard Rorty changed my life.

The first time, it was 1998 and I was a college senior taking a year-long course from Rorty during his first year at Stanford. The course listing indicated that by taking the class I'd get the chance to reacquaint myself with the Western canon. Instead, what I learned was that I wasn't the only person who cherished religion without living a life of belief, that a school of thought called pragmatism echoed many of the ideas I'd stumbled across in philosophical Taoism & Buddhism, and that Theodore Roosevelt more or less captured the meaning of life when he said "Do what you can, with what you have, where you are." (In class, I once asked Rorty what he felt the meaning of life was. I distinctly recall his answer: "To envisage new modes of being." Let's stick with Roosevelt.)

That was the first time. This is the second time:

The last time I had a long talk with Richard Rorty was October 2001. I was a struggling entrepreneur, back at Stanford half-time to finish my masters degree while the company I helped found was itself foundering (It would miraculously recover). I was taking a graduate course with Rorty – I think it was called Kant, Nietzsche, & Heidegger – and I paid him a visit in his office. I remember the conversation like it was yesterday.

As it was early October 2001, we started the conversation the way all conversations began in early October 2001. We talked about 9/11.

I asked Rorty if he'd written anything about 9/11. He said that he had not, but that he suspected American culture would react to this shock the same way it had reacted to similar shocks before — with xenophobia and a temporary loss of civil liberties. I was still in my post-9/11 complacency. Rorty was not.

Rorty was unflaggingly patriotic but despised chauvinism, recognizing that it's the latter that passes for patriotism today. In his brief 1994 essay The Unpatriotic Academy, Rorty (a lifelong leftie) criticized his fellow academic lefties, expounding a view that others would later condense into the t-shirt/bumper sticker slogan Dissent is Patriotic:

There is no contradiction between such identification and shame at the greed, the intolerance and the indifference to suffering that is widespread in the United States. On the contrary, you can feel shame over your country's behavior only to the extent to which you feel it is your country. If we fail in such identification, we fail in national hope. If we fail in national hope, we shall no longer even try to change our ways.

The obligatory 9/11 discussion out of the way, we moved on to other matters.

Mainly me.
...and my life.
...and me not knowing what to do with it.

It was 2001 and I was completing my second degree in Religious Studies. I knew enough to know that I didn't have the desire or the talent to get my PhD. Having been pulled into 1999's online tulip mania, I had about 2 years of experience with technology startups, but did I want to be the guy with the Religious Studies degree, pretending to know Thing One about how to build The Next Big Thing? Here I was, about to ask Richard Rorty – the most subtle, inspiring mind I'd ever met – what to do with my life.

(I know I said I remembered this conversation like yesterday, but things get a little hazy here. Rather than bore you with "and then I said" followed by "and then he said," I'll just fast-forward to way I felt at the end of the conversation.)

Leaving his office, I knew I had just lived through a Eureka moment. I felt physically changed. I'd felt great before, I've felt great since — but I'd never felt quite like this. As I bid Rorty adieu and descended the interior steps of Building 260, I reflected on these ideas that had hit me like such a freight train.

Long before this conversation, Rorty convinced me that it is pointless to pretend that there is some unique thing called philosophy — I recall him characterizing it as little more than "boring poetry." Although statements like this earned Rorty more than his share of academic enemies, few would dispute the assertion that the best painters, the best writers, the best thinkers, the best musicians do little more than introduce us to new modes of being. Their fields are more similar than they are different. They all show us a glimpse of what is possible.

I'll never forget what I thought as I walked down those steps: The Law is simply the social laboratory in which ideas do battle. To become a lawyer is to become someone who is a tiny part of a gigantic idea project. A lawyer's job is to sculpt ideas as people change and sculpt people as ideas change.

I went home and told my surprised girlfriend – not yet my fiancée – that I had an epiphany and was going to law school. The following summer, I took the LSAT exam. That fall, I applied to a few law schools. I deferred law school for two years until that girlfriend – by then, my wife – finished her own law schooling. In 2005, that girlfriend/fiancée/wife and I moved to New York, and I started law school.

Now, almost six years after talking to Richard Rorty, I believe more firmly than ever that the lawyer's role is to shepherd ideas through society and society through ideas. I'm working at a law firm that guides startups, startups like the one that I worked at when I talked to Richard Rorty in October 2001.

Richard Rorty died on Friday at age 75. A few years ago, he changed my life. Thank you, Rorty. Thank you for changing my life.

Gone Are the Brethren

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

In my 3½ semesters in law school, I’ve noticed a funny expression in old Supreme Court opinions. Justices would often use the phrase “my brethren” to refer to their fellow justices.

As one might expect, the appointment of a woman to the Supreme Court marked the end of this practice. A Westlaw search of the phrase “my brethren” in Supreme Court opinions yielded some 284 Supreme Court cases, from 1795 to 1981, in which the phrase appeared. The last time “my brethren” was used to refer to fellow justices was in Justice Rehnquist’s dissent from a denial of certiorari in Jeffries v. Barksdale, 453 U.S. 914 (1981). The Jeffries dissent was handed down on June 29, 1981; President Reagan nominated Sandra Day O’Connor on July 7, 1981.

After the Gavel: Anna Nicole Smith & Other Star-Crossed Litigants

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

In law school, no case receives more than an hour's attention – Marbury v. Madison? Brown v. Board? Roe v. Wade? The Steel Seizure Case? Each gets an hour, tops. As law students hop from case to case, they generally leave each case with a sense of permanence: The matter between the parties is resolved. The issue is put to rest. Next case.

Anna Nicole Smith's sudden and tragic passing today highlights, the lives of the litigants go on after their famous day in court concludes. As we skip around the law, we generally do so unaware that the parties to a well-known case might not have lived happily ever once they left the courthouse.

As Adam notes elsewhere in this blog, it is with sadness that we learn of Ms. Smith's fate; however, she is not the first litigant to die soon after a major court victory or defeat. It's sad but unsurprising when a gravely injured litigant dies soon after their day in court. It's altogether different when a seemingly healthy party dies shortly after the final gavel.

Anna Nicole Smith: An icon of popular culture, Ms. Smith was one of the most immediately recognized and well-known Americans; however, she only gained the professional attention of the legal community through the protracted legal battle over her late husband's estate — a battle ultimately leading to her SCOTUS victory in Marshall v. Marshall, 126 S.Ct. 1735 (2006).

In something of an ironic twist of fate, Ms. Smith is predeceased by E. Pierce Marshall, the named defendant in Marshall v. Marshall and son of Smith's husband J. Howard Marshall II. Mr. Marshall died of an infection on June 20, 2006, less than two months after losing at the Supreme Court.


Tyrone Garner: Although Mr. Garner's name is not immediately recognizable to most law students, his legacy as co-plaintiff in Lawrence v. Texas, 539 U.S. 558 (2003), represents a monumental leap forward for gay rights in the United States. Unfortunately, Mr. Garner's chance to relish this powerful victory was short lived, and he died of meningitis on September 12, 2006.


Richard Loving: Although Richard and Mildred Loving's successful battle against Virginia's ban on interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967), would have a profound effect on marriage in America, their own marriage would be tragically cut short. On June 29, 1975, Richard, Mildred, and Mildred's sister Garnet were traveling by car when they were hit by a drunk driver, killing Richard. Richard Loving was 41.


Dred Scott: In the infamous Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the Supreme Court determined that slaves could not be citizens of the United States: a decision that helped provoke a civil war, led directly to the Civil Rights Act of 1866, and ultimately to the Fourteenth Amendment to the U.S. Constitution.

For better or worse, Dred Scott experienced none of these subsequent developments. Having been granted his freedom by his eventual owners in early 1858, Scott died of tuberculosis on September 17, 1858.

Ignoring Ambition Checking Ambition

At the founding of our country, James Madison felt confident that a system of checks and balances between different branches of the federal government would work, because "[a]mbition must be made to counteract ambition." Neither Madison, nor the founders generally, anticipated the role that dominant political parties would play in harmonizing the goals of the various branches when those branches were instructed to toe the party line.

Today, Senator Chuck Hagel (R-Ne) is valiantly and eloquently standing up to the Bush surge-scalation effort, vocally opposing the White House and demanding that his fellow Senators take a position. In chiding his fellow colleagues into being clear about where they stand on Iraq, Hagel offered this:

What do you believe? What are you willing to support? What do you think? Why were you elected?

If you wanted a safe job, go sell shoes. This is a tough business. But is it any tougher, us having to take a tough vote, express ourselves and have the courage to step up on what we’re asking our young men and women to do?

I don’t think so.

If you wanted a safe job, go sell shoes is probably the most concise, memorable statement about political responsibility that I've heard during my adult life.

So how does the neoconservative establishment respond to Hagel's ambition? By ignoring it. In the 58 posts and 8,604 words that National Review editors have written today on their blog, the word "Hagel" appears exactly once — and then, only in reference to an immigration bill he co-sponsored last year.

Until the authors of the current debacle — whether it be the intellectual authors at the National Review or the strategic authors like Dick Cheney — learn to address their critics in a forthright and authentic manner, it will be impossible for them to repair any of the erosion that has so completely undermined their credibility.