Archive for October, 2007

Department of Missing the Obvious

Monday, October 29th, 2007

1. George Will had a column this week arguing that a 2008 presidential candidate’s abortion position shouldn’t matter to voters. His theory is that even if a Republican gets elected and appoints Supreme Court justices who will overturn Roe v. Wade, people in liberal states shouldn’t fret because their legislatures will maintain abortion rights even without a federal constitutional mandate.

Profs. Adler and Somin at the Volokh Conspiracy beat me to this, but Will ignores the obvious rejoinder that, in the absence of Roe, a Republican Congress would enact a federal abortion law. They do some debating over whether that would be constitutional under the Commerce Clause, and it’s moot unless the GOP gets closer to taking back Congress than I think they’ll be in 2008. But to the extent a candidate would eventually have to decide whether to sign a federal abortion ban, his position is very relevant.

2. Ramesh Ponnuru suggested this week at National Review Online that his preferred candidate, John McCain, should pull a James K. Polk and make a pledge to serve only one term if elected in 2008. Ponnuru argues that McCain could win a mandate if he sets specific goals: “fixing entitlements and beating terrorists.”

There are two obvious things I think are wrong with this argument. First, Ponnuru doesn’t deal with McCain’s Iraq policy, but I think it’s too close to Bush’s for him to get elected in 2008. At a minimum, McCain would have to very clearly explain what he plans to do about Iraq, Iran, Afghanistan, Pakistan, and North Korea, and how he think he can get that done in four years. (And that’s leaving aside what he thinks he can do about entitlement reform.) If the whole premise of a one-term pledge is that the candidate says he can accomplish all his goals in four years and retire, he needs to convince voters up front. And he would probably have to explain what he would do if he was wrong and the problems were a little more intractable: would he still give up after four years? What conditions would make him re-think his pledge?

Second, I disagree with Ponnuru’s assertion that if McCain made a one-term pledge he wouldn’t become an instant lame duck. I think we would get something of a proxy election for his running mate. After all, the running mate would be the obvious nominee in 2012, and in fact would have to start running in late 2010 or so. (I won’t get into the delicate subject of McCain’s age and health problems, which could make his running mate quite relevant if McCain isn’t able to complete even one term.) On the other hand, this could make McCain more likely to pick an Oval Office-ready running mate, if that person knows he or she (Rice?) would only have to apprentice for four years.

I have a feeling that Ponnuru might be thinking that if McCain pledged to serve only one term, the American people would give him the White House as something of an honorarium after his years of public service (and as something of a do-over for 2000). And Ponnuru would rather have the certainty of four years with McCain than to nominate some other Republican who is as likely to get zero years as eight. But unlike the challenges facing President Polk, I don’t think the next president can solve our current problems in just four years. (Not that Polk “solved” everything facing him, especially slavery. But he did kick the Civil War can down the road a little ways.) So I think if McCain made a one-term pledge he would actually look a little desperate.

Anyway, in honor of President Polk, here is an amusingly literal student-made video for the They Might Be Giants song “James K. Polk.”

More on Bashman and the Withdrawn Opinion — UPDATED

Monday, October 22nd, 2007

This is a follow-up to my previous post about a Second Circuit opinion that was issued a few days ago, then withdrawn, and then the next day re-released with some redactions. Uber-blogger Howard Bashman got a copy of the original opinion and posted it, even though the Clerk of the Second Circuit asked him to take it down. (I originally thought he did take it down only to later put it back up, but I seem to be wrong on that; my earlier unsuccessful attempt to load the opinion from his site may have been due to server issues or a malfunction on my end.)

There’s been plenty of coverage of this little matter. See Howard here and Wait A Second! here and the Co-Op here and the Legal Blog Watch here and the BLT here and the LawBeat here and Patterico here and some solid coverage of the opinion itself at Psychsound here. I think I found all those links via Howard, which shows how much I count on his blog, even though I’m a tad critical of him this time.

I understand Bashman’s reasons for not taking down the opinion. First, he says, “No one from the Second Circuit has attempted to explain to me the so-called security concerns” behind withdrawing the opinion, and Howard analyzes the opinion and finds any such concerns unavailing in any event. Second, to quote Patterico’s analogy, the genie was already out of the bottle anyway, and it wouldn’t do any good for Bashman to pretend it wasn’t. I have a couple of responses.

First, the apparent reason for the Second Circuit’s withdrawal was that sealed material made its way into the publicly-released opinion. Patterico suggests that the material was sealed — and omitted from the re-released opinion — to save the government from embarrassment. (The case dealt with an FBI agent’s coerced confession.) Likewise, Howard doesn’t see any “security concerns” in the mistakenly-unredacted material. But is that their call? The material was sealed for some reason — maybe in the district court, and maybe by mutual consent of the parties. Even if it shouldn’t have been under seal, I think attorneys have a responsibility to respect a court order sealing portions of the record.

Second, sure the genie was already out, but did Howard need to keep rubbing the bottle? As Bashman noted, and I readily concede, the Second Circuit wasn’t in any position to retrieve all the copies of the opinion that were already out there. And yes, that had damaged, probably “irreparably,” whatever security concerns existed. But by leaving the opinion up after the Clerk expressed those concerns to Howard, he essentially said he wasn’t going to take the court’s word for it and take whatever admittedly minimal steps he could to minimize the damage. If hundreds or even thousands of people read the opinion before all this blew up, I’m sure many times more read the unredacted opinion afterwards, and Howard could have done a great deal to reduce that number.

I understand that all this is complicated by Howard’s role as a journalist, discussed in more detail at some of those links above. I don’t dispute that characterization, and I would assume that under Bartnicki v. Vopper, he has a First Amendment right to post the unredacted opinion. But even journalists who are not also lawyers should respect some limits. I’m sure that in the five-plus years Bashman has been running his blog, he’s had occasion to become privy to other court secrets. Has no judge’s law clerk out there ever slipped him advance notice of the outcome of a case before it was released? I’m certain Howard wouldn’t publish something like that.

Let’s even leave aside any concerns about the reliability of a tip like that, and assume a situation where Howard gets an insider tip and absolutely trusts that his source is correct. If he wouldn’t publish that (and I feel confident saying he wouldn’t), why is that categorically different than this situation? I’m willing to be persuaded, but I haven’t been yet. Is it enough that the opinion was publicly available for even a brief time? What if the mistakenly-unredacted material was something like a party’s social security number, or the full name of a sexual abuse victim who should have been referred to by initials? Is it still up to Howard to decide, on his own, that the “security concerns” present in those cases are sufficient for him to respect the court’s seal? Like I said, I’m willing to be convinced that this case is different (for some reason other than the fact that it’s the government getting embarrassed here). But I haven’t yet heard any articulation of why this case is so different from some other one where the lawyer/journalist would respect the court’s order sealing material in the record.

UPDATE: Howard collects some more coverage here, and see also AL&P here and here and Patterico’s updated post, complete with Instapundit link.

Technologically Obsolete Rock Songs

Monday, October 15th, 2007

I heard the song “Radar Love” the other night, and it got me thinking. If you’re not familiar, the song is about a guy who gets a radar-type signal from his woman that she needs to see him, so he drives all night to get to her. At one point, the singer notes that, thanks to radar love, they “don’t need a letter at all,” which I always thought was a reference to the song “The Letter,” which features a man who gets a letter from a woman demanding his presence immediately. (This requires him to “Get [] a ticket for an aeroplane, [’cause he] ain’t got time to take a fast train.”)

Anyway, I realized how out-of-date “Radar Love” is. In this day and age of cell phones and free long distance, not to mention the internet and instant messaging, the lonely and lovesick don’t need telepathy anymore. Or maybe you can look at it a different way and imagine that Golden Earring was prescient. Maybe they imagined some type of futuristic messaging system that would bounce off radars and send missives to faraway people.

That thought reminded me of a Yes song I’ve mentioned I don’t really like, “I’ve Seen All Good People.” There’s a line in there that goes “Send an instant karma to me/ initial it with loving care.” (That’s Yes, as in, Yes, prog rock was weird.) This always makes me think of email. It’s bizarre to me to imagine some acid-addled guitar nut dreaming up the world wide web.

But this whole thing got me musing about other classic rock songs that are technologically out-of-date, or otherwise would have to use references to modern technology if they were written now. (An aside: One day, will we hear “Doctor My Eyes” in an ad for LASIK surgery?)

Some suggestions for lyrical alterations:

The Police, “Every Breath You Take“: “Every friend you make/ on your MySpace page/ In every Facebook group/ for you I will snoop…”

The Beatles, “Let It Be“: When I find myself in times of trouble/ Mother Mary IM’s me/ LOL 4evr, let it B…”

The Beatles, “Sgt. Pepper’s Lonely Hearts Club Band“: “We’re Dr. Neil Clark Warren’s eHarmony band…”

Tommy Tutone, “867-5309/Jenny“: “Jenny, Jenny, I used caller i.d. block/ But you star-69’ed me and gave me a shock…”

Manfred Mann, “Do Wah Diddy Diddy“: “There she was just a-walkin’ down the street/ singing do wah diddy diddy dum diddy do/ I put an ad on craigslist and I said I’d like to meet/ singing do wah diddy diddy dum diddy do…”

Joan Jett, “I Love Rock ‘n’ Roll“: “I love rock ‘n’ roll/ download another song into your iTunes library/ I love rock ‘n’ roll/ Put in your iPod earbuds and dance with me…”

Other suggestions?

Nothin’s Gonna Ever Keep You Down!

Monday, October 8th, 2007

There’s this meme going around where bloggers name their favorite blogs, or, that is, the blogs they feel are “simply the best.” I was genuinely touched and honored to see BTQ show up on Bradley Parker’s blog. I know things have been kind of a hit-or-miss last few months here, but I’m doing a lot better personally and professionally now, and a lot more dedicated to doing good things here when I can find the time. Thanks to Mr. Parker for adding a little inspiration.

So now I need to name my ten best. There are a lot that have already been named that I would list too, but I’ll try to avoid too much redundancy. So I’ll call these ten very awesome blogs that should definitely be considered among the best, divided somewhat by category.

A little bit of anything and everything:

1. Side Salad. The author, Jeff Houck, is a food writer for the Tampa Tribune. The blog obviously has a lot of food-related posts, but there’s also plenty of other Florida zaniness. Here’s his recent fifth anniversary post, with links to some typically hilarious highlights. And don’t miss the Sombrero Project.

2. The Neutral Zone Trap. Cats, hockey, Diet Dr Pepper, teaching, banana hatred. You have to immerse yourself into E. McPan’s blog to truly appreciate it. It’s like a whole other dimension where everything is sort of the same, but slightly off-kilter. Or smaller, like the Small House!

3. The Slog. This is the blog from The Stranger, Seattle’s weekly alternative paper. It’s Dan Savage and all these people he hangs out with talking about movies and music and politics and sex and anything else that strikes them. I skip all the stuff about traffic and local elections, but there’s plenty of good stuff left.

4. Passive Aggressive Notes and My Roommate is a Dick. It’s fun to see other people angry.


5. EDSBS. Every Day Should Be Saturday is the best college football blog out there (although SMQ deserves special mention), and one of the best sports blogs, period. It’s always fun, but there’s plenty of insight between the laughs, too.


6. Sentencing Law & Policy. I probably spend more time on How Appealing or Volokh, and some days Althouse, too. Those are all very good at what they do, but Prof. Berman’s sentencing blog is the best single-issue law blog. It’s truly a model of how a blog and legal scholarship can co-exist and complement each other, not to mention have a real impact on policy and law.

7. Above the Law. David Lat, formerly of Underneath Their Robes, describes this one as a “legal tabloid.” As fluffy as it is, it’s also surprisingly filling. If I were a BigLaw associate obsessed over my salary, I think I would have ATL constantly open in one window, hitting “refresh” every six minutes.


8. Big(ger) Media Edition: The New Republic‘s The Plank and Reason‘s Hit & Run. I probably check National Review Online’s The Corner more often during a day, just because they post so much over there and the lunacy makes me laugh. But I always enjoy reading The Plank and Hit & Run, although you won’t be surprised to learn I agree with one more than the other.

9. Small(er) Edition: Obsidian Wings and Balkinization. The average post on these blogs has more insight than a year’s worth of BTQ posts, especially when it comes to issues concerning the war on terror and national security issues.


10. I could have a long list of blogs I really miss but that are now on hiatuses of varying lengths. Also known as…the BTQ blogroll! Bah-dah-bump! I won’t list any here, so if you’re mad at being left out, start posting again to complain about it. I will instead use this slot to commend Durham-in-Wonderland. Prof. KC Johnson’s blog played no small part in keeping three innocent young men out of prison by blogging incessantly about the Duke lacrosse case. Here’s legal reporting blog the Lawbeat on D-i-W shutting things down. When the biggest criticism someone can come up with for your blog is that it contains so darn much information, you’re doing okay. Kudos from a Duke alum to Prof. Johnson for all his hard work. And hey, if a full-time history professor can write 1100 posts totaling 870,000 words in 400 days, maybe some of those defunct blogs I used to read can make a comeback and post something every once in a while. And hey — maybe I can too!

Congrats to all these bloggers, and the excellent blogs I didn’t mention because everyone else beat me to it. In honor of these bloggers, I offer the most fitting tribute I can find: