The Once and Future Lawyer

Resurrected

2010-07-01T15:35:00.002-04:00

I am planning to start posting again. Stay tuned.

A quick entry on earmarks

2009-03-11T22:22:00.003-04:00

I haven't posted much lately, mainly because I have been incredibly busy. I feel compelled to write something about earmarks though, if only to point out the absurdity of the coverage of this bill.

Most Americans, myself included, have no understanding of how much much money is spent in the budget per year or how much it takes to actually get a budget passed. Moreover, most Americans, myself included, have no appreciation for how much $1 billion is, let alone $400+ billion (or $700+ billion or whatever). My understanding of Congress, from what little experience I have, is that it's going to take a lot more than talk to get the quid pro quo nature of government spending in line with private enterprise, and in all likelihood, it won't happen. But "earmarks" and "lobbyists" and what have you are necessary evils to get things done. And once this new administration and the markets calm down over what has become a self-fulfilling spiral, maybe things will start turning around so that twenty years from now, we're not worse off than we are now.

What the news reports about earmarks and how much billions are devoted to them fail to advertise is how small a percentage they actually are. The budget is estimated at $410 billion or so and earmarks make up $7.6 billion. That's 1.9%. Considering how inefficient government typically is, the fact that the number got whittled down to this one is amazing in itself. And this 9000 number they keep tossing around is another red herring when you consider how complex and detailed the budget actually is. I say let's see what happens over the next six-eight months and make incremental adjustments along the way. But then again, I'm not the president. And neither is the 24/7 media reporting on the various situations that arise daily.

Fun with Madoff

2009-02-04T20:27:00.003-05:00

Harry Markopolos, the now famous whistle blower who attempted to blow the cover on the Madoff ponzi scheme, testified before Congress today. I tried to find the actual transcript of the testimony after hearing about it from some people at work, but no dice. One summary was found here.

Some gems from the actual testimony include:

"Right now, the SEC is 3,500 chickens; we need to put some foxes in there."

"I plan on turning in a one-billion-dollar mini-Madoff to the SEC tomorrow." "I hope they will listen to me this time."

"If you flew the entire SEC staff to Fenway Park, they wouldn't be able to find first base."

From his prepared remarks (also a good read) you will find this one:

The biggest, most glaring tip-off that this had to be fraud was that BM only reported 3 down months out of 87 months whereas the S&P 500 was down 28 months during that time period. No money manager is only down 3.4% of the time. That would be equivalent to a major league baseball player batting .966 and no one suspecting that this player was cheating, and therefore fictional.

But the real kicker is how much money is $50 billion. I know CNN ran an article talking about how much a trillion dollars is, but this amount of money is just as staggering. If you spent $50/hour for 2009 years, you would still not go through one billion dollars. To blow through $50 billion in that same amount of time, you would need to spend $2839.15/hour. This is a ton of money. Which makes these comments all the more comical.

The Superbowl ads were super bad, but one online was pretty funny

2009-02-01T22:51:00.002-05:00

For what turned out to be a great Superbowl game, the ads certainly were much more of a let down. I figured with the economy tanking there may be some funny ones that played on bailouts and what not, but they were plain terrible. If you missed them, Hulu has them online. I can't imagine how USA today will rank them tomorrow, but my overall impression is that they must have laid off the creative staff in some of these ad agencies. The Doritos and Cheetos ones were pretty funny though, and I laughed when that ostrich chased the mailman. The David Abernathy one was terrible.

In looking around for some of them on the internet this morning, I came across one that is so stupid that it actually works. It could use some work, but the concept would have worked for the Superbowl - people would have talked about this commercial, and they would have remembered it. Take a look at Coors 2nd Life Superbowl Commercial. Disagree or not, it's better than these Clydesdale commercials, which need to go the way of the frogs.

President Obama elected

2009-01-20T20:33:00.003-05:00

I was able to watch part of the inauguration today. One thing I thought was good about the speech was that it attempted to inspire people to start setting goals and trying to unite together. And manage expectations, that's the big thing I got out of it. Excellent speech. There are plenty of sites with the text of Obama's inauguration speech (or here) so I need not repeat any of it here.

I also sort of laughed when he and the chief justice flubbed up the oath. Hey, if anything it shows they make mistakes like anyone else. I think they were both just anxious and nervous, and as one article said, it was "close enough for government work." Embarrassing yes, but what can you do. I thought they played it off well. At least all of these silly suits about his citizenship were immediately mooted as a result, if they are even still around.

Looking over the crowd, I am still amazed how many people the president has inspired and this probably was the most watched event ever. It's a good thing, and probably has larger, long-term effects than any of us realize right now.

New season of 24: pass

2009-01-12T22:18:00.003-05:00

As a followup to my post the other day, I did wind up watching most of the four hour season premiere of 24. I'm sure there will be some good episodes mixed in, but the plot isn't doing anything for me and I will not be watching any further episodes, except maybe the season finale depending on my schedule. Frankly, the whole idea of a massive government conspiracy (which seems to be the basis for every season of 24) is just a bit spent. Fortunately, I have plenty of work to keep me busy, even in this slow economic time.

But, if you like the action and conspiracy theories that are prevalent in the past couple of seasons of 24, I'm sure you'll devote another day out of your life to watching Jack Bauer save the day again. I'll be content to just read the top 100 facts about Jack Bauer instead.

Now, Lost is another story - I'm too far invested in the show to give up on it this close to the finish. Only another week or so to go for that one.

24 new season starts up

2009-01-11T19:42:00.002-05:00

Although I have been fairly successful in limiting my television watching (or at least limiting the tivo to just a couple of shows), I think I'm going to go ahead and watch 24 tonight and then decide whether I want to keep watching it or just record it and watch it all at once in the summer. It is nice having the freedom to watch shows online at my own convenience, that's for sure.

So is the new season of 24 going to be any good? I'm sure that it will be entertaining and nowadays I need some mindless crap to watch just to keep things interesting and sane.

NY Model wants to unmask anonymous commenter

2009-01-07T19:56:00.002-05:00

A blogger called model Liskula Cohen a "skank" has decided that she wants to confront the person who hurled the insult under the guise of first amendment protection. See Model Liskula Cohen Sues Google Over Blogger's 'Skank' Comment. Apparently these posts came shortly after what amounted to a drunken brawl.

Now, I'm no first amendment expert, but I think that implying that this is a slam dunk defamation case is a little bit much. Of course, I haven't read the complaint either, and I'm sure there is more to it than the article makes there out to be. Regardless, it's an uphill wall to climb, and I'm sure this just made the headlines for lack of more pressing things to report about. Doesn't this model bring more negative publicity to herself by bringing such a longshot suit? At least she acknowledges that this is "petty . . . stupid and . . . pathetic." Oh wait, that's what she said about the sniping. Same difference.

Thoughts after a month of online dating with match.com

2009-01-05T19:52:00.001-05:00

Much of this sort of echoes my previous experiences with online dating, but it's changed somewhat since I'm not in school and I'm actually have a decent job, so I thought it worth writing some thoughts. Maybe someone with experience from the other side can chime in as well. I almost am tempted to do something along the lines of what Law With Grace does out in Chicago with some of these dates, but I'll have to think about that some more.

I did have drinks with someone who told me she had just quit her job to go back to school (at night), but when I asked why they didn't want to take a part time job (during the day), she told me she wouldn't be able to collect unemployment. She must have seen the look of confusion on my face and it ended not too long thereafter.

This whole winking and emailing is nonsense. Winking moreso than emailing. I hate email, but you have to do it in order to get anywhere on this site. One girl told me she averaged 30 winks a day during the week and double on the weekend, and probably 10 or so emails a week. I had no response to that one other than shock and awe. Well, more shock and then a thought that maybe I'm not emailing enough to different girls. Then again, apparently a boatload of these are from divorcees and men with two or more half-children, so it sort of makes sense now why so many women feel compelled to put in their description that they don't want 60 year olds emailing them.

I could write more, but there's simply no point. Since I often get searches for "how long should I wait to respond to a wink" (or the other side of the coin "how long does it take for someone to email back"), however, I'll simply offer this advice: There is no internet etiquette (or at least the threshold is pretty low). If you're interested in a guy or girl who winks, you should respond within one day. If you're not interested, use the "no thanks" option. Same goes with email. If it takes a day or two and she seems to be playing on the swingers calendar, I take the same amount of time to respond. Other times I do it that day, but mainly because (again), I hate email and I figure I'll forget otherwise.

If you send one email and don't get a response, I take that to mean they aren't interested. Apparently others interpret this to mean send another two or three emails and a bunch of winks, or, in one case, stalk them on facespace or over i-m after figuring out their name. Weirdos. Don't do that, you're making the rest of us look bad. It's like that saying, if you don't know who the most annoying kid in your class is, it must be you.

Also, I can't tell you how many profiles I've seen where women under 6'0 are looking for men more than six inches taller? Seriously? There must be a lot of men on this site that lie about their height. Because of this, and these weirdo emailers, I'm beginning to think people like me (who stands at a meager 5'9) are getting screwed over.

Uncle Scrooge decides to put a tax on air

2008-12-16T20:29:00.002-05:00

This is just ridiculous: Gov. David Paterson unveils dire New York State budget that includes new taxes, layoffs and cuts. This is the sort of progressive taxing plan that operates to hurt those not making those hefty six figure salaries. Taxes are going up on everything related to entertainment, junk food, travel, clothes, gas, and everything else. This almost reminds me of the Simpson's Radioactive Man episode where Springfield taxed the movie company out of production, but just not as funny. I wonder how McDonalds and Coke are going to react to this one. Why not start putting a tax on people's weight and complete the circle.

A quick followup to the Dr Pepper and Chinese Democracy debacle

2008-12-14T13:12:00.002-05:00

One additional post on this Dr Pepper deal that had good intentions but didn't quite have its intended effect (although given the publicity that was spawned as a result, I am inclined to think that the campaign was more successful than either camp lets on). The Entertainment & Media Law Blog reports that Dr Pepper has given a "fizzy" response. See Dr Pepper's Fizzy Response ot the 'Chinese Democracy' Shakeup. Their sentiments echo my own and similarly bring up Taco Bell, although they refer to another advertising campaign that led the parties down a much different legal path.

Speaking of chinese democracy, I did happen to catch the series finale to Boston Legal, which is the first episode I watched since last year when I axed it from my list. Having seen the US Supreme Court in action on more than one occasion, I think they took a lot of liberty with the decor (and I don't think they would have tolerated a lot of the nonsense, including speaking past the time), although the set was sort of similar.

Overall, I don't care what David E. Kelley is complaining about (see David E. Kelley Is Frustrated With Broadcast TV and David E. Kelley: ABC Shunned Boston Legal; "Satified" with Series Run): the show was axed (from both my list and ABC) not because it doesn't have some good dialog on occasion, but because it lacked in substance what it attempted to make up in character. While I'm not a fan of the serial storylines (although I still plan on watching Lost), they certainly can work if the story is compelling enough, and the series (for me anyway) became way too outrageous and disjointed for me to keep watching at all, let alone with any regularity.

More bailing out - but don't forget who is in charge of the country right now

2008-12-08T20:48:00.002-05:00

I see that the Big 3 auto industry is on the verge of receiving a bailout. See Automaker Plan in Bush's Court. I'm not getting into the logistics of all of this, but merely point out two aspects of this that are troubling. First, although the "Big 3" auto players are in trouble, I fail to understand how their plight is such that they require government help when other auto manufacturers who also have plants in the US are not suffering. See generally The Becker-Posner Blog: Bail Out the Big Three Auto Producers? Not a Good Idea-Becker. Granted, they have a much bigger employment base, but still. How many dozens of businesses have went under or have declared bankruptcy and survived nonetheless.

Second, unlike the banking industry, the auto industry is a significantly more private enterprise. This sort of relates to the first point, but isn't the whole idea of the free market to have minimal government interference? Maybe with this bailout the government will be able to do something about the unions, or at least interfere to the same degree.

Hopefully the president shoots this down (or better, it fails to pass Congress) and the effect on the market is minimal.

Chinese Democracy, GNR, and Dr Pepper

2008-12-02T21:47:00.003-05:00

Did you ever notice that Dr Pepper doesn't have the "." in Dr.? Besides this factoid, the long awaited promotion that the Dr Pepper soft drink company would give a free can of soda when Guns N' Roses would finally release their Chinese Democracy album has run into a bit of a snag. But what is funnier is that the band is up in arms about it. Obviously there are a lot of underlying issues, but it's a rather funny story of promotion gone wild. Will GNR succeed? Well, you know what they say about any publicity. See Guns N' Roses Lashes Out At Dr Pepper. Next up, rabies shots for the Easter bunny.

It's a good thing the Phillies let one get by them during the world series or else people may have been unjustly denied their delicious free taco and that would just be legally upsetting. Just like this.

Libel lawsuits continue

2008-12-02T19:43:00.003-05:00

In another story about online gossip and those who get offended by it, I saw a headline that shows another person who has turned to the court system to stop the spread of internet libel. See Colorado Man Charged With Libel Over Craigslist Posts. I find this story particularly interesting in light of a recent comment posted in response to one of my former television stories. Personally, I don't find it offensive but rather funny given the unnecessary use of profanity. See Eli Stone Write-Up comment number 5.

I'm beginning to think there are more subtle differences to anonymity on the internet than the founders actually considered when they blessed the freedom of speech in the Bill of Rights. Will this turn into another evolving standard? If only suits like the Juicy Campus one would survive a little longer for some interesting legal commentary. See also The Great E-Barrier Reef. But then again, with cases like the Myspace suicide one filling the news, it's sufficient to say that the area of first amendment law and its intersection with the internet will continue to provide news for many years to come.

Why serving as your own lawyer is generally a bad idea

2008-11-25T08:00:00.002-05:00

This headline jumped out at me yesterday: More Americans Serving As Their Own Lawyers. Basically, it implies that in the midwest and other parts of the country, people are deciding to represent themselves in certain disputes, such as over custody and divorce.

My friends would occasionally send me excerpts from transcripts on family court cases they had come across and as a clerk I came across a few pro se appeals on the criminal side in one way or another. I can say with absolute certainty that the adage "a person who represents herself has a fool for a client" is around for a reason. The law is tricky and, in the family law realm, very statutory. Why you would want to risk screwing it up by doing it yourself is beyond me. Maybe you enjoy wasting everyone's time. Criminal is another story, but even that is goofy nine times out of ten. Take the prosecutor's deal.

Now, obviously things cost money. Assuming you have to pay your rent, car insurance, food bills, whatever, you probably can scrimp and save up enough (or borrow for that matter) enough for some family law attorney to handle your case. Figure they will want some sort of retainer, and that is probably going to set you back $1000. And then figure it may still cost you more depending on many other factors they can explain to you, so you're going to have to have a budget and figure it out. Divorces, on the other hand, are probably much less complex, and if you are worried about how much a lawyer is going to cost in your divorce case, your case probably is less complex than you think and hence, less expensive. Call around and find a good rate.

So, like anything else you want or desire in this world, if you can't afford it, save your money and figure out a way for it to either become affordable or manageable. There are services (in most states) that may be able to represent you for free, although for this sort of thing, you're probably going to be out of pocket. But, think of it like this: If you're going to try and do this yourself and then screw up, it's going to cost you ten times as much as it would have cost you had you gotten a lawyer in the first place. Hire an attorney.

24: Redemption thoughts

2008-11-24T07:47:00.004-05:00

I did sit and watch the 24: Redemption preview yesterday. It was okay. I had heard that episode was supposed to be the start of last season (which got cut short) and they reworked it so they could essentially start over when the new season starts in January.

I wonder if they will just gloss over the subpoena stuff and "find out" that Jack Bauer was granted a presidential pardon as Powers Booth's final act as president. I kept waiting for them to show his name on a pardon list, but alas, I will have to wait to find out what happens next on January 11 (or in June so I can watch the entire show without commercials and through tivo).

So, if you like 24, you will be moderately disappointed by this episode, but it gives some hope if you plan on watching the next season.

These pirates are making me thirsty...for some naval warfare

2008-11-18T20:14:00.004-05:00

Here's a simple observation in light of these pirates attacking every boat on the other side of the atlantic. Cut your losses and sink their ships! They are on boats, which should be just as sinkable as the Titanic. The British have started to fight back; my lack of foreign policy experience doesn't provide me with any reason why we (or Russia, or whoever else) can't do the same. I can't imagine how pirates have somehow created a united naval presence rivaling us, Russia, or whoever else.

Incredibly long days and another attempt at online dating

2008-11-17T20:15:00.004-05:00

November is not even half over and I have already billed an inordinate number of hours this month. Who says a recession is bad for lawyers? Not I.

As a result of work, I must say that my social life has taken a bit of a nosedive, particularly because I wind up getting done work late and am often too tired to go out except on weekends. This is going to have to change, as this sort of non-stop work is sure to lead to an ulcer or other health related side effects which I don't need.

On a related note, I am going to give a shot at this online dating thing again. I figure being in a much larger city should give me a few more options. I'm not sure I'm going to go into as much detail as Law With Grace has done, but I think I can be general enough not to trigger anyone who may stumble across this blog. I purposely did not write anything about the previous dates I have been on during the clerkship, mainly because there was nothing out of the ordinary with any of them. None of them worked out for any long amount of time, plus with me moving away with no intention of staying didn't help for any long-term potential either.

Despite my previous disasters with Match.com, I think I'm going to give it one more shot, or at least something like it. At least now I don't have to explain what a clerk is, and my work schedule accommodates more casual post-work drinks. Plus it will give me something to write about since I feel compelled to bill anything legal-related. But the job is fun so far, don't get me wrong.

Anyway, so long as I stay away from those who describe their occupation as "designer of things" (which is a real one by the way), I have a good feeling about this time around. Then again, I'm not going to set the bar too high either.

Money found in walls and the legal battle that ensued

2008-11-09T09:24:00.003-05:00

This article was all over the news yesterday and merits a brief discussion, if only for the humor of it. See Finding Cash in Walls, and Reaping Grief.

A contractor found $182,000 hidden in a wall of a house he was working on. Since that's a lot of money to hide from the government, he decided to do the right thing and tell the owner, with the expectation of getting the equivalent of a "finders keepers, losers weepers" fee.

The question becomes how do you split the value of this treasure trove? Well, like kids on a playground, they couldn't agree. Without knowing how this particular law works in Ohio, I read on with curiosity as to what happened next: the family of the original owner of the money found out about it, decided the upside of suing was worth more than the downside, and will wind up with a certain part of it.

Now, this is good for the descendants of said money hording original owner of the $182,000, but bad for the finder and the current owner. Because they could not agree on a number between 10 and 40 percent (owner offered 10, contractor wanted 40), they decided to get the law involved, tipped the press off to garner sympathy, and the family of the original person who hid the money decided that this money was really theirs. And the real winner of all of this? The lawyers.

Here's some free common sense advice: It will be much cheaper if you can figure out how to divvy up the money between the two finders. Granted, the contractor probably should have gotten not much more than 10 or 15 percent, but that could have easily been negotiated out. I think the article alludes to the fact he wound up with 13 percent or so. Either way, 10 or 15 percent of 200,000 is much more than the pittance they probably wound up with after fees and fighting this out in court since December 2007.

I also saw an interesting article about how the internet generation (or "Google generation," if you will) makes for a lousy jury, but haven't read it yet. It's about English law, so I'm not sure how well that translates over.

Obama wins and the sun still came up today

2008-11-05T07:57:00.003-05:00

Well, the world didn't end. I think the breadth of Obama's win is going to be good for this country. For those who are disappointed, McCain's comments in his concession speech should be taken to heart:

"I urge all Americans . . . who supported me to join me in not just congratulating him, but offering our next president our good will and earnest effort to find ways to come together to find the necessary compromises to bridge our differences and help restore our prosperity, defend our security in a dangerous world, and leave our children and grandchildren a stronger, better country than we inherited.

Whatever our differences, we are fellow Americans. And please believe me when I say no association has ever meant more to me than that.

It is natural. It's natural, tonight, to feel some disappointment. But tomorrow, we must move beyond it and work together to get our country moving again."

I'm sure I will have some thoughts on all of this, but not at the moment.

Vote cast

2008-11-04T18:50:00.002-05:00

Although I recognize generally the idea that voting is an irrational practice, I still did my civic duty this morning and cast my vote. Now I will sit and watch the returns come in and watch this three-ring circus finally come to an end.

With less than a week to go before the election, is there any reason to believe any smear ad at this point?

2008-10-30T16:08:00.002-04:00

The answer to the question posed by my post topic (With less than a week to go before the election, is there any reason to believe any smear ad at this point?), the answer is no. Like the bottom of the ninth or the late fourth quarter of a football game, the advertisements for both campaigns at this point are really just a hail mary to try and get through the campaign noise. While they may have some surface effect, in substance they are lacking.

If you can't decide at this point, you should just flip a coin. Of course, if you are that indecisive, I would imagine you are probably leaning toward the Democrat party, since they are really based on the government helping you out anyway.

This Alaskan senator Stevens story, however, needs a quick comment. Here is Sen. Stevens, at 84 years old, now convicted of concealing a quarter million dollars in gifts, still is running for reelection. Are the citizens of Alaska crazy for allowing this guy to continue? Or would they be crazy only if he got reelected. In either case, what a debacle and smear on this guy's legacy.

I am with the majority on this one that he should just resign. So what if his opponent wins the race by default. That's the Alaskan Republican party's fault for not running a viable candidate against him or in place of him when this corruption scandal erupted. I'll save the age card for another day.

What I find disturbing, however, is the split in executive authority over what this guy should do "for the good of the country." On one hand, and in a perfect world, I suppose, he would lose the election because the Alaskan people are outraged. Somehow, I think it more probable than not that he would win. And if he wins, and then resigns, obviously the governor (presumably Sarah Palin or her replacement if need be) would appoint someone and then have a special election afterwards.

At what cost would this be to the Alaskan people? Whatever the cost, it seems excessive given that they can avoid all of this by having him resign up front. For a party of "mavericks" or generally of reduced government spending, it seems like an awful waste of money to have this charade continue. Cf. John McCain calls for Ted Stevens to quit; Sarah Palin doesn't go quite that far with McCain, Palin call for Stevens to step aside. But, as a non-Alaskan citizen, what should I care for?

Concurring Opinions posts the Berg opinion

2008-10-27T19:05:00.004-04:00

I haven't had time to read through it yet, and I will decide whether I need to chime in and post any thoughts that contribute to a more intelligent discourse later.

Rather than post the direct link to the PDF, I will simply post to the entry on the Concurring Opinions blog, which has the link to it: See Dave Hoffman, Berg v. Obama Opinion and Analysis. See also my earlier thoughts on this lawsuit (complete with comments ranging from the hilariously absurd to the otherwise well-reasoned).

I will note that in searching for this opinion, I came across at least one site (which I am not going to link) which appears to be generating money for the appeal to the Supreme Court. Now, I don't know whether or not this money is actually going anywhere or to anyone in particular (other than at least to the person soliciting the donations), so I'll simply reiterate what should be an obvious point.

Like anything else on the internet, I would be particularly leary about anybody or any site asking for money. For anyone who knows anything about law, I'll save you two cents: he can't appeal directly to the U.S. Supreme Court anyway before he spends a boatload on appealing to the 3rd Circuit. If you feel so inclined to give your hard earned money to something worthwhile, donate to the Library of Congress, the Peace Corp., or your local blood bank.

Little known news blip, but interesting nonetheless

2008-10-26T20:58:00.002-04:00

I saw that the Obama-Berg lawsuit got dismissed and commented on that on that entry. This was an interesting news story that is likely to be overlooked: Charles Fried, a well-known conservative lawyer and con law professor, announced that he endorsed Obama. It's not as national an endorsement as Gen. Powell's, but it certainly has me thinking of how many other Republicans are starting to (or have already decided to) jump ship.

A point about red states & blue states

2008-10-25T20:06:00.002-04:00

I was speaking with one of my friend's dad's over the weekend and he made a good point about this connotation about red states and blue states. His point was that not even 15 years ago, if you referred to something as "red" it was associated with Communism. His point was how quickly the world forgets. What is more disturbing, to me anyway, is that this concept of red v. blue has divided our country so much. I can only hope that whoever the next president is can start turning out economy around and bringing our country back together.

After all, there was a saying that used to be pretty popular, but seems to have lost a lot of its luster as of late: "United we stand, divided we fall."

This concept of billing time

2008-10-23T20:23:00.003-04:00

Billing time reminds me of this quote from William Faulkner's The Sound and the Fury (book available here), which I last read in high school:

Time is dead as long as it is being clicked off by little wheels; only when the clock stops does time come to life.

So, there's a trade-off to everything.

National polling data sites analyzed

2008-10-21T22:55:00.004-04:00

Because I am a news junkee in some respects, but one who tries to find the middle ground in reporting through a series of balancing acts, I am always on the lookout for what could be correct or indicative polling data. For the past few weeks, I have focused much of my attention on the Real Clear Politics poll and Rasmussen's data. Apparently, my reliance on Real Clear Politics is a little misplaced.

Granted, this site has its own biases also, but I thought the post was worth reading. See FiveThirtyEight: Real Credibility Problems (discussing the inclusion and exclusion of certain polling data from the RCP poll) and his follow-up post, RCP Follow-Up. He also pointed me to this Pollster.com polling site, which seems to say what every other poll is saying: the Republican ship is sinking, and this election is not going to turn on one state.

Whether or not any of these polls have any prescient accuracy remains to be seen, but the point, as always, is to look at these things with a grain of salt and a skeptic eye. My prediction remains rather general: Voter turnout will be through the roof, and none of these polls are going to get it exactly right.

This election is going to be over with in a couple of weeks. Whether poll A or B or C puts Obama ahead or behind, or McCain ahead or behind in other states is irrelevant. All of this voter fraud nonsense is the same swan song that is played during every election. See also An Analysis of Voter Fraud in the United States. The system is not perfect. But it's the system we've got and that's the way it is.

The bottom line is that all of these polls have significant margins of error and none purport to give what is required to be scientifically statistically accurate. This has more to do with cost efficiencies more than anything else, and in the end it's just a conversation piece that adds fuel to the fire of 24/7 media, a recurring problem I have discussed many times over the past few months.

I will be curious to see whether my own prediction is going to come true - so far it seems on track, although I certainly miscalculated the breadth and success of Obama's 50-state strategy. We'll see how exactly it plays out in two weeks, and obviously it is going to impact future elections regardless of who wins.

No real point to this entry, just thought the article regarding the RCP polling information was interesting. Why can't all of these polling sites simply disclose their information? I'm more interested in how much money these sort of businesses actually make, but I can't seem to find that anywhere.

Why is it so unamerican to have negotiated a good contract for yourself?

2008-10-20T20:29:00.003-04:00

What I would really like to write about is Gen. Powell's endorsement of Sen. Obama and why his comments lay out, quite intelligently, at least three specific reasons why his support, despite being a Republican, is behind the distinguished gentleman from Illinois. I would suggest that if you did not see the interview, the transcript speaks for itself.

I do want to mention, briefly, that despite my best intentions, I am still watching, even as I speak, some of cable news. The problem with these talk shows, which purport themselves as news shows, is that they are not: they are opinion commentary shows; there is a significant difference. Whether the general watcher realizes this or not is irrelevant. So long as everyone watching understands that each guest is carefully selected to endorse or rebut the point the show is trying to make, the perception should not be influenced beyond what it would be from one's own decision-making process. What disturbs me is that I doubt this sort of thought-process takes place. I have no solution to this problem at this time. Regardless...

But what prompts this quick reaction and the title of this entry stems from seeing the recent (and continuous) negative news reaction about CEO compensation. From a legal perspective, what rights does a non-stockholder have over what a private entity and its stockholders decides to pay its CEO? Not very much. See, e.g., Bailout's Bid to Limit Executive Pay will be Tough to Realize. Regardless of how far their golden parachute opens, these CEO's are going to come out on top one way or another. See, e.g., BoA Gives Top Job to Merrill Lynch CEO in the Merged Entity.

My limited point is why does it matter that these CEOs are making a lot of money? For the headache they have to go through in running a company, I'm sure a lot of that money is incentive to serve in the first place. Nobody seems to be complaining about how much money these news outlet CEOs and other industry CEOs are making in comparison.

People seem to be mad whenever they hear about how someone else is doing really well. It's rather absurd, actually. Didn't the Yankees pay A-rod about a quarter of a billion dollars to come in and turn the team around? I haven't seen them win a world series since he's been on the team. Should we renegotiate his contract and take away what has already been promised to him? Absolutely not. Should it impact how future contracts are negotiated? Perhaps. But notwithstanding this example, can't people be happy for someone when they are successful? Of course, all of this is facetious.

This is sort of getting circular and I haven't given it any significant amount of thought, but it just infuriates me when I see someone (particularly on cable news) bitch and complain about some ex-or current bank CEO or whoever who has been paid their contract. There are certainly ways, legally, to curb excessive pay, and if the stockholders want to do something about it, they certainly can. Why make this a news issue? It's not news. It's business.

And what exactly is a pro-America area of this country? And where are the anti-American areas? I can't wait until this election is over so the media will finally have something better to report about.

Two funny internet videos

2008-10-19T13:27:00.004-04:00

I rarely post links to videos, but these two were particularly funny. I'm not sure how long either of them will be available, but I'm sure they will make their way onto YouTube or something like that. The first is one of a wedding where the best man trips and knocks the bride into a pool. See Worst Best Man Ever. The other, assuming you are a fan of Triumph the Insult Dog, is Triumph's coverage of the third presidential debate. See Triumph in the Presidential Debate Spin Room (10/16/08 "Decision 2008" if that link redirects).

The best line is "Even Joe the Plumber couldn't unclog the crap coming out of their mouths." And "Phillies 2, Dodgers nothing, Joe the Plumber 13."

Is Joe the Plumber going to become the catalyst symbol of the average joe? I don't think so

2008-10-18T09:14:00.005-04:00

Just a quick thought on this Joe the Plumber story and I will be more consistent in tying legal thoughts to some of these rather juicy legal news bits as of late.

When I heard the Joe the Plumber story break, I thought Obama's choice of phrasing was a little off. People love throwing around "socialism" and "communism" and "robin hood" without really understanding the concepts, so I am giving him a pass on this one.

The concept of fairness and this so-called wealth distribution, in some respects, is quite misleading with those terms. It isn't so much the question of why the richest should pay more taxes, it's a question of why should the richest only pay the social security tax only up to a certain point. Isn't it everyone's burden? I appreciate the idea of social security being more of a flat tax than some sort of regressive tax, and I also appreciate, from a financially greedy perspective, having it cut-off at some point. But if Obama wants to move up the cut-off point for the social security tax to double what it is now as an effort to balance the social security budget, so be it. Now, moving that number up will obviously affect all businesses, so maybe there needs to be some further tweaking, but that can be given in the form of other tax breaks and incentives. I don't know enough about it to speak more about it than this at this point. Now with regular income taxes, that's another story for another time. Flat tax = semi bad.

But not with social security did this phraseology capture the media's attention, but only in the limited respect with a presumed small business owner's concern with why should his taxes be raised because his business is doing better than someone else's. Certainly it's a fair question, and the answer, I agree, was worded quite poorly. Had Obama said, it's to help pay in part programs like this $700 billion+ bailout plan, that may have been more realistic. He just needs a stock response that doesn't sound too distant or political. Regardless...

The fact that it came up in the debate, multiple times, in the way that it came up, was surprising. I can understand McCain attempting to turn "Joe the Plumber" into some sort of icon to turn the larger conversation to tax policy and perspective. The problem with doing this is that you have to make sure your icon actually stands for what you are purporting him to be. I remember thinking as the debate was going on that it would be funny if Joe the Plumber wasn't even a plumber. And, as it turns out, I was semi-right. At least the 24/7 media had something new to report about.

According to the USA Today article, and about every other valid article written on the subject, Joe the Plumber turns out to not be the sad story he purports to be. In many respects, it is totally irrelevant that he isn't really a plumber, but aspires to be one, has not completed his Ohio apprenticeship to be licensed, and has a lien on his house for failing to pay state income taxes. It's no wonder Joe the Plumber doesn't want the government to get involved with the average Joe (or him), he owes them money!

So maybe Joe isn't the best representative of the average Joe or small business owner. Maybe, in some respects, his thoughts are indicative of a greater concern with paying higher taxes. But it's conjecture and speculation. Further, it doesn't even effect him since his taxes will remain the same under either candidate. I appreciate the concern, but the fact he was trying to speak on behalf of a constituency he was not part of merely demonstrates that the media (and this time, the RNC) picked the wrong horse to hang their hat on. Had they done a minimum amount of research before giving their candidate a green light to use him to attempt to martyr the other side's tax plan, the debaters certainly would not have spent as much time as they did glorifying this guy, who turns out to be a tax evader.

So, was Joe the plumber the real winner? If by the fact you mean that the government of the State of Ohio will get their money, then yes. He's certainly getting his 15 minutes of fame, whether he likes it or not. But he shouldn't blame anyone on this unwanted spotlight other than the media (in part) and McCain, for bringing it up in the debate the way he did.

Some thoughts on big government

2008-10-09T19:53:00.003-04:00

For a quick jump at humor, I note that I still am getting humorous comments to my thoughts on this Obama citizenship lawsuit. Today's thoughts, however, turn back to the economy for a moment.

Last week the Congress passed, and the President signed into law a massive "bailout" (or "rescue", depending on how you spin it) plan to save the planet, or economy, if you will. At this point, the problem has become self-perpetuating, and the governments of the world, all of them really, are being forced to react. Whether this is good or bad is beside the question; it's going to happen and the free market is going to have to respond. So far, it doesn't seem to like it very much, or, at the very least, the housing bubble burst a little bigger than anyone thought it was going to. But hey, I'm not an economist, so what do I know.

What I do know is that McCain's suggestion that the government should now buy up people's bad mortgages and allow people to keep their homes is fiscally irresponsible, for several reasons, of which I will explain only one. The question at the town hall meeting was: With the economy on the downturn and retired and older citizens and workers losing their incomes, what's the fastest, most positive solution to bail these people out of the economic ruin?

First, Obama's answer was not very good. So what? It was good enough to show that he has at least given some thought on the issue, and more importantly, McCain's answer was far worse. And if that's McCain's stance on this issue, he deserves to lose. I'll be curious as to whether the exit polls next month have people voting for Obama, not so much for him, but simply against McCain.

The bottom line is that the economy has no realistic chance of recovering over the next 30 days, which essentially means that Obama will win this election. Personally, I think this may be a good thing for the country overall, but I will have to wait to see how good or bad the economy is four years from now before making a final decision on the merits. I rarely use this type of language, but McCain's answer is SCARY. Meaning, it is scary for everybody who makes or wants to make money (that is, everyone). At this point, my time to sit on the fence of this issue is over. Obama will get my vote. (Not that mine will make a difference in the electoral scheme of things).

Here is McCain's scary response, in full:

"Americans are angry, they're upset, and they're a little fearful. It's our job to fix the problem.

Now, I have a plan to fix this problem and it has got to do with energy independence. We've got to stop sending $700 billion a year to countries that don't want us very -- like us very much. We have to keep Americans' taxes low. All Americans' taxes low. Let's not raise taxes on anybody today.

We obviously have to stop this spending spree that's going on in Washington. Do you know that we've laid a $10 trillion debt on these young Americans who are here with us tonight, $500 billion of it we owe to China?

We've got to have a package of reforms and it has got to lead to reform prosperity and peace in the world. And I think that this problem has become so severe, as you know, that we're going to have to do something about home values.

You know that home values of retirees continues to decline and people are no longer able to afford their mortgage payments. As president of the United States, Alan, I would order the secretary of the treasury to immediately buy up the bad home loan mortgages in America and renegotiate at the new value of those homes -- at the diminished value of those homes and let people be able to make those -- be able to make those payments and stay in their homes.

Is it expensive? Yes. But we all know, my friends, until we stabilize home values in America, we're never going to start turning around and creating jobs and fixing our economy. And we've got to give some trust and confidence back to America.

I know how the do that, my friends. And it's my proposal, it's not Sen. Obama's proposal, it's not President Bush's proposal. But I know how to get America working again, restore our economy and take care of working Americans. Thank you."

What scares me about this response is the level of government involvement it implies. Government can renegotiate private contracts? What is this, communist China? And where was this idea last week when the Senate was forcing their rescue bill into the House's tied hands? What is scary is that McCain seems to have abandoned all principle and reason to score a political point. This is not good judgment. And I have convinced myself, after living through Clinton's sexual revolution debacles and this Iraq war that still seems to be me based on the premise that the end justifies the means, that we need a leader with good judgment.

What scares me more is the fiscal price tag to such a proposal. Now, this wouldn't be scary too much, except for McCain's other comments that he doesn't want to raise taxes. On that issue, in addition to the italicized portion above, McCain added this insight into his economic prowess:

"So let's not raise anybody's taxes, my friends, and make it be very clear to you I am not in favor of tax cuts for the wealthy. I am in favor of leaving the tax rates alone and reducing the tax burden on middle-income Americans by doubling your tax exemption for every child from $3,500 to $7,000.

To giving every American a $5,000 refundable tax credit and go out and get the health insurance you want rather than mandates and fines for small businesses, as Sen. Obama's plan calls for. And let's create jobs and let's get our economy going again. And let's not raise anybody's taxes."

These positions are irreconcilable. He says to freeze government spending, save defense, Veterans' Affairs, and "some other vital programs", which is Washington wishy washy nonsense for "everything else." At least Obama tells you that taxes are going up for some people, and in reality, for everyone. The government, and the country, cannot function without everyone sacrificing a little bit. Because of the nature of this particular crisis, that sacrifice will have to come from the wallet.

Now, I agree that there are probably a lot of wasteful programs that could be cut and eliminated completely and that may save the deficit a bit. Similarly, if the IRS went after everyone who didn't pay their legal share of taxes, we probably wouldn't be in debt at all. The problem with both candidates is that they are in favor of big government and government rescuing the ordinary people. The last I checked, most everyone is capable of handling these problems with only minimal assistance, be it from their parents or whoever.

The next four years is going to be bad for us all economically. I would hate to throw another terrorist attack or war into the mix and see how that would drag us down further. The leadership our country needs, however, isn't with a bunch of pipe dreams and mud slinging over who voted for what when and why. It's all about the economy and how we can start fixing it. McCain's plan is economically unworkable, even from a liberal Democratic standard. In fact, it's so liberal, I'm surprised the core of his party aren't rolling over in their graves.

When both candidates propose massive government spending and support the type of government interference that is, admittedly, probably necessary at this point, I am unable to distinguish which one is the Republican candidate and which is the Democrat. The fact that the Republican is advocating for the same principles that his party is rooted against only continues to reiterate my belief that we are not a two party system. And if both candidates are really just spinning the same side of one coin to try and get it to land closer to them, I think this really comes down to whose economic plan and persona will better lead our country out of these financial doldrums and back into some sort of good graces. Unfortunately for us Republicans out there, or at least those who somewhat identify more with the principles of that party, this isn't going to be our year.

But, I am more than willing to read or discuss the reasons why or why I am not right or wrong. Next time, if I remember (or when I get back from this next upcoming trip across the country), I will write a commentary regarding why students who are borrowing money better hit the books if they want to get a good loan rate. I know that if I were a lender right now, I would be renegotiating my future interest rates to be dependent on the average graduate income from that school. Business-wise, it makes great sense. Of course, if you're a slacker, you better change those habits quick.

Things for a clerk to negotiate when weighing their post-clerkship options

2008-10-08T08:35:00.004-04:00

Obviously there are a lot of things to consider after you have your post-clerkship job lined up, but here are two to give serious thought to: start date and payment of the clerkship bonus (if any).

Most of the clerks I know were able to get a start date sometime 4-6-8 weeks after the end of the clerkship and probably 3/4 were able to get their clerkship bonus either in full or in part upon completion of their clerkship. The latter is good if you are planning to take some time off (highly recommended by the way) in between the clerkship and the new job. Obviously these are outliers; we all know some firms don't pay a clerkship bonus, or pay their bonus after the first year of working; other firms want you to start right away, and you may want to start right away. In general, however, these two things seemed pretty easy to negotiate, and I would be willing to bet that most firms are more than willing to work with you to ensure you are rested and ready to go by the time you start.

Also, don't forget to factor in the time it takes to move - it's a much bigger pain in the ass then you may initially think. Add another week after you plan on moving in case you aren't sure.

And for those starting off clerking (or have already started), now is the time to start looking for that post-clerkship job (assuming you aren't looking for a second (or third) clerkship. In a lot of ways, you are on the same schedule as a third year law student, and competing against them just the same (with obvious benefits - bar passage (when it comes), clerkship, general coolness, etc.).

The VP Debate, or why the cable media is continuing to distort common perceptions

2008-10-03T08:54:00.003-04:00

I watched the debate with some moderate interest last night, not because it was a debate between the vice presidential candidates, but because it was the first and only live uninterrupted and unedited coverage of the choices the candidates had made. After the first twenty minutes of the debate, it became clear (to me anyway) that the Democrats have the stronger ticket by far.

It's not that Sarah Palin did a bad job, I would agree with the general perception that she exceeded expectations. But the fact that the McCain campaign (or more likely, the left and right media) had driven the public's perception of her to the point that expectations were low continues to baffle me. Setting strategy aside, I looked at it from a legal perspective, as if both were testifying and the moderator was the examiner.

At least in the beginning and for the most part, Biden answered each question pointedly and with specific examples, as one would expect a lawyer to do. Palin, on the other hand, either did not answer the question, would answer a totally different question on what seemed to be a rehearsed topic, and could not refute any of the points (right or wrong, I don't know), that Biden was making. Certainly when it came to foreign policy and the governments in the middle east (and admittedly, I know very little on this area), it seemed that Biden had a firm understanding of what was going on and Palin seemed to ramble.

But more than that, Palin's responses were substantively empty or nonresponsive. Even my non-lawyer friends would agree with that. Without at least a firm understanding of her candidate's policies (or the party's), I was left with the distinct feeling that confirmed my initial suspicions that Palin was picked not for her political prowess, but for mere political reasons. And if that is indeed why she was picked, then the Republican party deserves to lose. But with both McCain and Obama in favor of big government and bailing out private businesses from the mistakes of their executives and clients, I'm not sure whether there really is a republican party even still in existence. Whatever emerges from this mess and unification of the two party system, if anything, would only be in its conceptual stages at this point, and I need not speculate on it further at this time.

This race has never been about Republicans or Democrats; it's about the direction of this country and whether we should continue down the same path for another four or eight years. Because the Republicans are in power, this is an incredible hill to climb. I remain convinced that Obama will win the election, in part because of his charisma, but more so because he is drawing different numbers and demographics (the college-age, mostly) than any previous Democratic contender. See generally my March thoughts on the electoral map. His choice of Biden semi-cuts against this message, but less so than any other candidate, and it was clear after watching the debate that Biden was the superior choice in the matter. I'm sure at some point McCain wondered about his choice regarding a McCain-Kerry ticket, as did many others in fact, but that bridge certainly went nowhere fast.

Anyway, as a "juror" on the vp debate jury, I think Biden made his case for his guy and Palin did not make hers for hers. That's all it was about. But in watching some of the cable shows yesterday, I have to make one additional comment on this process before I begin to think about how I am going to continue to follow this political process.

I have decided that, notwithstanding my previous six months or so of following cable news, it's time to stop watching it. For example, I have liked the O'Reilly Factor and have tried to watch the first segment when I can. For the most part, I believe that O'Reilly is probably the least biased of all the nightly cable news people, although he certainly is to the right of the neutral mid-line. Is he a good reporter though? I don't think so, especially after watching last night's rant against Rep. Frank. See video and discussion here, or here. Assuming reporters are supposed to get to their point quickly and efficiently, as soon as I heard O'Reilly tell the interviewee "that is bs, blah blah blah" my ears turned off. I know that I was taught that if I was cross-examining someone and lost my cool, I would lose the case. Certainly that happened for my opinion of O'Reilly and my constant defending of his show after that interview.

So that there is no dispute over my position on the cable news media, I have developed a continuum for the left to right bias: Far right (Hannity of Hannity and Colmes) - Mid right (O'Reilly) - Mid (David Gergen, CNN political commentator) - Left (Chris Matthews, Hardball), Far left (Keith Olbermann of Countdown). Sometimes I will watch Hannity to offset Keith Olbermann, but I really can't watch either for very long. I balance O'Reilly with Anderson Cooper. I heard morning Joe is good, but haven't seen it; I rarely watch Lou Dobbs but he's sort of between O'Reilly and the middle; the new Rachel Maddow show I haven't watched nor plan to, and Glenn Beck, after reading his book, may be further right than all of them.

After watching some of the quick political spin immediately after the debate, I have concluded that the cable news media is the core reason behind the perpetuation of a nationwide desire for 24/7 news. See generally my earlier thoughts on the media's distain for economic success. I did flip over to ABC, CBS, and NBC briefly after the debate and they seemed much calm about speculating on who won and who lost, so maybe I should just stick to the evening news and be done with it. Whatever I decide, I am going to make a conscious effort, and like television (save the Office and Lost, and a couple of other shows), I am simply going to turn it off. After spending three years in law school and another year clerking, the last thing I need is for some doofy television personality to tell me how I should interpret something I just saw. And since I suspect most of the general public has the same dislike of patronage, I am willing to bet that once the discussion over the vice presidential debate calms down (likely today), the rest of the country will shift its focus back on the major issues, particularly the pending recession.

The more interesting point, and I suppose this will have to wait for four years, is how the next president will be able to deliver on the promise for change without stalling out the economy. I predict a massive overhauling of the tax code to start. The current tax code became outdated about ten years ago.

Is the media being too hard on Palin? Or being less hard on McCain?

2008-10-02T17:58:00.005-04:00

Certainly, this debate is going to be heavily scrutinized and spun in ten different directions for the next few days, if not the next month. Setting aside any worthless speculation on that issue, I think I have figured out at least one underlying reason why Gov. Palin has been such a draw to the media (other than the sheer novelty of her selection). Notwithstanding who may have started the phrase, the idea that Gov. Palin is "one heartbeat away" from being president distinguishes her from every other vice presidential candidate. But is it that her selection draws unnecessary emphasis on McCain's age or does it take attention away from McCain himself? I suggest that it's the latter. Whether this strategy is good or bad remains to be seen.

On the one hand, there is all this nonsense talk about the need for experience to be vice president and everybody (that is, everybody except those who have actually been president or v.p.) thinks they know what it takes to be president (or vice president). I say forget about this actual experience question all together. Experience is important, for sure, but as I've said all along, success lies in the decision making process. We need to stop being so results-oriented, particularly since economic change takes at least a decade, if not two. I'm not sure how to begin to tackle that nationwide mentality, though, and it is being exacerbated by the media, so what can any one person really do?

My point to all of this is that it seems that Gov. Palin has shifted everyone's focus from the actual presidential race, or she has minimally changed it to be a referendum on Palin's experience v. Obama's experience. This change is silly: the race isn't Palin v. Obama; however, it's McCain v. Obama. I have stopped being amazed at how everyone on the news seems to have forgotten that. Maybe another thousand point drop on the market will do so. Of course, with both McCain and Obama in favor of big government, maybe the focus should be on the vice presidents, just not to the snippy degree at which they are currently.

A good example of the unfocused attention Gov. Palin is getting is with the Supreme Court case question that Katie Couric threw out at her the other day. While a lawyer is probably aware of any of a dozen or more headliner United States Supreme Court cases in the last century or two (including the most recent second amendment case), the lack of being able to answer this jeopardy question should not be held against Gov. Palin.

To the best of my knowledge, she has had no legal education. If you were to ask someone running for some state office the same question, I'm sure Roe v. Wade would be in the top 3 or 5 cases that would be answered. McCain, who is actually running for president, certainly would have been able to rattle off a couple of cases and nobody would have stirred at the question. Which brings me back to my point.

Is the media being less critical of McCain as a result of Palin? And more importantly, is this shift in focus good or bad for the country? I'll have to give this some thought as the two vice presidential candidates spar it out. Maybe the candidates will be asked something important, such as how their candidate plans on preventing the next banking collapse, or why exactly this affects "joe six pack," who probably has no idea about how those mavericks on Wall Street are impacting their retirement lifestyle.

A little jetlagged, and financially stable...for now

2008-09-30T19:38:00.002-04:00

Luckily for me (and most other recent law school graduates), my debt far outweighs whatever losses I may or may not have taken in the stock market's latest see-saw (or dead cat) bouncing. Anyone who graduated from professional school in the last three years will likely still be working in a decade, so it's not going to be too bad in the long run (fingers crossed). Anyway, I'm still sifting through about two weeks of news, and I want to come up with a response to this interview where Gov. Palin rambled on for about five minutes about nothing, but I'll just put some links to some of the more interesting articles from today and leave the reader to judge them for him or herself.

Harvard professor Jeffrey A. Miron agrees with my suggestion that the bankruptcy laws may be equally as good as a rushed bailout plan. See Jeffrey A. Milon, Bankruptcy, Not Bailout, is the Right Answer. His commentary is much more detailed than either of my quick thoughts on this issue (new deal, quick thoughts).

I still have not made up my mind completely about Gov. Palin. While my initial concerns have still not been alleviated, I can't say I've been entirely reassured that McCain made the best selection either. In an article posted today, Fareed Zakaria, a Harvard and Yale educated expert on government and foreign affairs followed up on an earlier written piece, both of which echo some of my own concerns. See McCain's VP decision is 'fundamentally irresponsible'; Palin is Read? Please.

I find it fascinating on the spins that are coming out of both camps regarding Gov. Palin and her upcoming debate with Sen. Biden. Regardless, this sort of response to what one would anticipate would have a very canned or rehearsed should send a red flag up to anyone who has ever been put on the spot in class and was just saying whatever stream of thought sounded best. I must copy this transcript, and if I find one comparing a black-line to the SNL skit, maybe I'll put it up as well. While I find Gov. Palin's clarification on why the proximity of Alaska to Russia counts for foreign policy experience slightly disturbing, I find this response much more so, given the uncertainty of the financial markets as of late:

COURIC: Why isn't it better, Governor Palin, to spend $700 billion helping middle-class families who are struggling with health care, housing, gas and groceries; allow them to spend more and put more money into the economy instead of helping these big financial institutions that played a role in creating this mess?

PALIN: That's why I say I, like every American I'm speaking with, were ill about this position that we have been put in where it is the taxpayers looking to bail out. But ultimately, what the bailout does is help those who are concerned about the health-care reform that is needed to help shore up our economy, helping the—it's got to be all about job creation, too, shoring up our economy and putting it back on the right track. So health-care reform and reducing taxes and reining in spending has got to accompany tax reductions and tax relief for Americans. And trade, we've got to see trade as opportunity, not as a competitive, scary thing. But one in five jobs being created in the trade sector today, we've got to look at that as more opportunity. All those things under the umbrella of job creation. This bailout is a part of that.

And finally, all this nonsense about free speech lately. See, e.g., Report on Obama's 'Truth Squad' Stirring Up Controversy. I attempted to sift through about ten pages of worthless websites to find some sort of neutral reporting on this issue, and came up empty, other than finding that John McCain also has a truth squad. See, e.g., McCain 'Truth Squad' Hits Back at Clark, Obama; McCain Campaign Deploys 'Palin Truth Squad.'

I'm not sure whether the general public understands the contours of free speech other than they think its an unfettered right. It is not. As pointed out on the Volokh Conspiracy site, it's difficult to find any substantive information on exactly what has happened, and I'm inclined to believe the whole thing is blown out of proportion by the the uninformed public and self-perpetuating misinformation. Either way, I'm not going to following this particular story beyond the occasional click.

Enough for now. I think I'm going to start house hunting and enjoy what little time off I still have left.

A quick point from an airplane terminal regarding this bailout plan

2008-09-29T22:18:00.002-04:00

I only have a few minutes between flights, and I must admit that I could not have picked a worse week to stop watching the news for the last of my pre-work vacations, but I am torn between whether this bailout plan passing or not passing is a good thing. I'm going to think more about it on my flight and try and come up with an intelligent point when I return to the east coast in a day or two.

Seven quick thoughts on today's crash and comedy of errors.

1. The fast-paced nature of a huge government bailout bill. With the business world still reeling from Sarbanes-Oxley, I am not totally surprised that a small core of Congress is hesitant to wade deeper into the water of government-sponsored bailout and federalization of private enterprise. Should the government get involved? Should it not get involved? Another way to put this is should we have a small government or a big one? This is the core of federalism/anti-federalism and what I thought was the fundamental difference between Democrats and Republicans. See point 2.

2. The Republican and Democratic (two-) party system is broken. I will not be at all surprised by this if a third, or even a fourth party forms from the two factions of both parties. We need some member of Congress (probably a Senator moreso than a Republican) or some governor to step up nationally, step up and lead, and just do something substantive. Isn't this sort of national crisis how the Republican party formed in the first place? I'm not perfect on my history, and I would think that this sort of change will take a few years, but perhaps this financial breakdown is the jolt that is needed for someone to make a real difference as a public servant. So that my viewpoint is clear, the Green, Libertarian, Independent, Donald Duck, or whatever other parties are currently in existent are not it.

3. Is it really the failure to pass this bailout plan the route of the problem or is it simply exposing the flaws in the financial lending system? The house of cards seems to be collapsing. How long did people really think a lender could loan millions of dollars nationally to people with bad credit before getting burned?

4. This stock market meltdown, whether it was inevitable or catalyzed by what I am tentatively categorizing as a vote of "no-confidence" in the government, will have serious effects on the general public, like it or not. What is going to happen when grocery stores start charging (as some gas stations do) excess fees for credit card usage? While New York and apparently nine other states prevent this practice, these sort of laws hurt businesses, or, alternatively, simply operate to drive up prices directly rather than indirectly.

5. Did twelve Republican senators really vote "nay" out of spite? See Lawmakers quickly point fingers after bailout fails; Lawmakers blame partisanship for failed house bill; Republicans accuse speaker of shattering fragile bail-out deal. Seriously?

I'm not a fan of government bailout when we have a perfectly good bankruptcy system in place, but when the crisis has reached a fever pitch, I would hope that the vote against such a massive government project has a good reason, and not simply, as Rep. Boehner is quoted as saying, "I do believe we could have got there today, had it not been for this partisan speech that the Speaker gave on the floor of the House" (see also Rep. Cantor: "There is a reason that this vote failed - and that is Speaker Pelosi's speech"). One word to this: RIDICULOUS.

If this bill, for better or worse, failed because of a doofy speech by the House speaker, then our government is more broken than I thought. See again Point 2.

6. I just hope that once I land my 401(k) hasn't turned into a 201(k) (with credit to some guy I heard make this identical joke to one of his friends at the airport bar a little while ago).

7. Hopefully the airline in my connecting city doesn't go out of business before I land.

Maybe it's time for another New Deal

2008-09-18T18:41:00.005-04:00

I do have some thoughts on this Palin email hacking debacle, as well as a growing concern that legislative subpoenas (e.g., Rove, Palin's husband) have absolutely zero power, which seems troubling. In the meantime, however, I will simply comment on the recent financial whiplash experienced by our economy. I wrote this after the second 400-point crash on Wednesday, so it's a little dated at this point given that the SEC has finally stepped up and started to regulate short selling, which I remain convinced is part of this mess. I'm just glad I have a job and hopefully I still will have one in six months.

Two points merit brief discussion. The first is this Wall Street mess. The second is the government's intervention to fix it. Like Ben Stein, I agree that taxes are going to have to be raised (likely against those who make the most money) now is not the time to cut corporate taxes. See Ben Stein, How to Ruin the United States of America. Cf. McCain on Financial Markets (stating at a Sept. 19 press conference that "Business taxes will be cut from the second highest in the world at 35 percent to 25 percent"). I disagree that the economy will be stimulated by tax cuts for 95% of Americans because while 95% may see some sort of tax relief, much less than that will actually notice any difference, assuming it passes. See Fact Check: Obama Wants to Raise Taxes; Obama and Taxes. Cf. ObamaTaxCut.com (unexplained and quick and dirty method of estimating taxable income; not sure I would put any stock in this one, but it's something).

Thus, with a lot of talk and no real substance, we are left with a nearly trillion dollar deficit and nobody wanting to contribute toward it. Wake up. Taxes are going up regardless of who the president is. The only question is how far down the small business chain those tax increases will travel (which I would guess, not very far). Once we cut out the puffery, the question is whether there is any candidate who is simply going to tell the country that things are bad, people are going to have to suck it up for a little while, and together with our economic allies, the federal government (and state governments) are going to turn this economy around, and then explain how they are going to do it. Unlikely, but one can hope.

Really, I would like to see one of the candidates step up and simply say that they are going to hold Wall Street accountable for any criminal actions that may have led to this historic collapse and people are going to go to jail. That's what I want to hear. Whether it happens or not is besides the point. I just want some reassurance that the economy is not going to fold up into a new great depression. The last thing we need is hyperinflation. In the end, it's really President Bush's job to announce via a national address, but that's probably not going to happen. Hopefully one of the candidates will do so instead.

Second, this concept of government bailout of private business is appalling. Granted, perhaps government intervention is the only way that this problem could have been alleviated, and that is a good thing. See Jim Cramer, The AIG Save Puts Us on Better Footing. With our national debt through the roof, how many other business (e.g., auto industry, airline industry) going to turn to the government to bail them out of their failed business strategy? To this, I would like the candidates to address how the federal government plans on restructioning these newly acquired assets in order for them to be successful.

Granted, the government seems to on the verge of resurrecting a parallel to the taxpayer-funded bailout of the savings and loan crisis, and this may help. See Paulson, Bernanke Seek Support for an Agency to Buy Bad Debt. So will help from foreign investors. While the markets may have rebounded, there remains questions of whether this is just temporary or have we actually hit the bottom? Time will tell. If only one of the candidates to step up and say it's time for a New Deal.

Berg v Obama citizenship TRO lawsuit

2008-09-08T10:16:00.003-04:00

Someone asked me whether I had heard about this lawsuit over Sen. Obama's citizenship. I told him I hadn't, but that it was unlikely to go anywhere in any court for lack of standing. Because this news story has some legal crossover, however, I figured I would get a more informed opinion over it. After sifting through about 10,000 pages of drivel from both the left and the right (and some funny legal ones from Above the law), I have been able to conclude that this lawsuit has not gotten very far, and in short order, will be dismissed.

From what I can tell, Philip Berg is an attorney in Pennsylvania who is bringing this action pro se against Sen. Obama. (Above the Law nominated Berg for lawyer of the day on August 25). See generally Below the Beltway: And That, It Would Seem Is That (discussing this suit and linking to other similar citizenship lawsuit challenges); Mystery solved*: Barack Obama was American-Born (playing on the conspiracy theorists attacking both parties). I have found a copy of the complaint here, but was unable to access it through the Eastern District of Pennsylvania website. At least according to that document, the case number is 08cv4083, and is captioned Philip J. Berg, Esquire v. Barack Hussein Obama, et al.

The complaint, among other things, seeks injunctive relief to prevent Sen. Obama from running based on his alleged non-citizenship. He also brings suit against the DNC for essentially failing to do the same thing as him. Curiously, the complaint references many internet allegations (and Wikipedia), but nothing actually concrete. I'll reserve comment on the merits, and instead focus on two problems, which will likely result in its dismissal.

First, the timing issue. He's been running for months, so the thought that there is a pressing need to act now, where no one has acted before, would lead most lawyers to the conclusion that a restraining order (and particularly an emergency injunction) is probably a loser.

Regarding the rest of the claims, I would imagine the entire complaint is going to be dismissed for lack of standing, particularly since the complaint does not address standing in any form. The question becomes (to me anyway), who would have standing to bring a claim against someone running for president? I think the answer is that there is only one person, the current president. Maybe there are others (DNC national committee chair, another party's nominee), but an ordinary citizen is, in all likelihood, not one of them. The remaining question is whether this lawsuit is frivolous enough to merit sanctions.

As it currently stands, however, it seems that the case was delayed pending service of process. See Motion denied in Obama lawsuit. That article indicates that the senator has been served, so I would imagine the actual dismissal can follow in short order, followed by the standard request for costs.

I may post the link to an article based on the court's response, but I doubt I will devote much, if any, more time on this topic. Assuming it gets dismissed, I'll be curious to see how much more time and money gets wasted on trying to appeal it. Cf. Philadelphia Attorney Phil Berg Demands Disbarment of (3) U.S. Supreme Court Justices. If only Jonathan Lee Riches would file a complaint out of this one.

Soon off to vacation, but first, a comment equating Gov. Palin to the Miers selection choice

2008-09-02T22:01:00.002-04:00

I am not going to wade into these political waters at this time, mainly because I am going to get away for awhile and will be away from the internet. But with John McCain's selection of relatively novice governor Sarah Palin, it instantly reminded me of when President Bush selected White House counsel Harriet Miers for the Supreme Court. With that seemingly political mood turning the entire process into a judicial death knell for her nomination, I can only wonder outloud if this selection will have the same result, only without the ability for her name to be withdrawn.

Others have written about this connection as well. See Sarah Palin is not Harriet Miers; Don't Call her 'Harriet'; Sarah Palin is the New Harriet Miers; Palin: Dangerously unqualified for VP. Now, I have only glanced over these articles, and a search for harriet miers and sarah palin yields over 28,000 webpages and 454 blog entries, so it certainly has to be on the Republican party leaders' minds whether this choice (or gamble, if you will) is going to pay off. My point is, if you are equating the vice presidential choice as a gamble, doesn't that say something about the choice itself?

There are several rumors circulating about Gov. Palin, which I am not going to discuss here without investigating them first. Stay tuned.

One week to go in clerkship

2008-08-25T18:05:00.002-04:00

I have only a few things left to do on my list of things that need to be done by Thursday or Friday, so it certainly continues to be busy as I get things ready for my replacement. And with Biden getting the surprise (sort of) nod for vice president, the news has been filled with plenty of things to keep me busy.

I'll only write briefly on an article that was on Above the Law the other day regarding Obama's economic plan. See The Obama Tax Plan. I always laugh at the comments people post on above the law (to the extent I even read them anymore), and my only comment regarding this particular article is the disclaimer at the end regarding the author: "Disclaimer / Disclosure: Since April, five weeks after I wrote the original ATL pieces, I have been doing unpaid volunteer work conducting research and interviews and writing memos for an adviser to the McCain campaign. I do not speak for the McCain campaign or for my day job employer."

Isn't it sort of funny that even ATL has succumbed to letting everyone chime in on the effects of a hypothetical tax plan that effects only a fraction of the population? Granted, I'm going to be in this tax bracket very soon as well, and admittedly haven't crunched the numbers myself, but give me a break. I have things to say about all of this, but no time to say them. Maybe someone will point out something I'm missing or not paying enough attention to with regard to these competing economic policies, which, to me anyway, seem fairly similar on the bottom line.

Back to work.

Less than two weeks to go, and probably less if i use the last of my vacation time

2008-08-19T19:16:00.003-04:00

It has been incredibly busy, which I still think is kind of odd, but mainly because I have been trapped with the school mentality that August is the end of summer where everything is comfortably slow, and I guess I'm just going to have to get used to the fact that the answer is "not necessarily."

I am certainly looking forward to getting this clerkship bonus, which should help cover some upcoming travel plans. In the meantime, I need to finalize my fantasy football draft and see if can improve again from last year's paltry finish. I can tell you one person that I won't be drafting this year, and that is Shaun Alexander.

And has anyone else noticed that the price of gas has dropped without anything fundamental changing besides consumer supply and demand? Interesting indeed. I do love how quickly the news has jumped from the headlines of "oil could be $300/barrel" or "pickens plan estimates oil to hit $200 by december" to "oil could be $65 by the end of the month" and other estimates which basically demonstrate without ambiguity that nobody understands this mess. At least in a couple months I will not have to worry so much about that particular expense.

Right to privacy and strict constructionism

2008-08-16T21:36:00.003-04:00

Sadly, I am doing work on a Saturday night with two weeks to go in the clerkship. In the background, I am listening to Pastor Rick Warren attempt to grill the candidates on various "hot button issues" at the Saddleback Civil Forum. See Obama and McCain Try to Woo Conservative Voters at Forum; McCain and Obama cite moral failures; O.C. Matchup Between Obama and McCain is a Prelude to Debates. There will be plenty of news on this that will continue to monopolize the news.

My point is with this, and this is a technical legal point. Maybe someone can enlighten me on how to reconcile it. The debate over the "right to privacy" appears to have settled into some sort of acceptance that it is part of the penumbra of rights contained in the bill of rights. From a strict constructionist perspective, however, the "right to privacy" is not in the constitution. So, how can you be for both without being fundamentally at odds?

I haven't given this much thought, and perhaps they can be reconciled, but this always seems to come up in the judicial nomination debate. I remain convinced that the general american public, and probably a significant portion of the legal profession, has no understanding of the politics that goes into this process. Nor do I think that most people (lawyers included) actually understand the nuances of strict constructionism versus the constitution as a "living, breathing document." In the end, the debate is pretty academic, but I cringe whenever I hear a non-lawyer (such as John McCain) or even a lawyer (such as Barack Obama) attempt to dumb it down for the general public.

Is there a solution to my legal conundrum or is it simply one for the academics and pundits to debate over?

Olympic glory

2008-08-16T10:16:00.003-04:00

Despite what I said earlier regarding the Olympics, and the various oddities that have emerged with the coverage (the lipsynching girl, the children used in the opening ceremony, the potentially forged passports of the gymnasts, among others), I have been watching most of the events at night, which has been taking a surprising amount of time. After watching Phelps's .01 second victory for gold number 7, I will be watching him go for the record 8th gold medal tonight, and I hope he gets it.

The site that purports to invite people to litigate

2008-08-07T18:38:00.003-04:00

There are so many more pressing issues to write about, but I wanted to take a few minutes and write about this "who can you sue" website that has been over the news lately. I may have written about this idea earlier in the year, but my point with this report and "service" is more in what it does than what it does not. See Who Can You Sue? Click Here.

The concept of using this website to see if you have a worthwhile legal claim is a little more detailed than it seems to be, and something more than just a simple referral site. The article suggests that legal advice is actually given over the internet: "Wolfe maintains his service could just as easily help someone realize he doesn't have a case — or that, while they may have a legal claim, it won't generate enough money to interest an attorney to take it on." While it then decides to refer the "client" to someone in their jurisdiction, I just wonder about the unauthorized practice of law implications this site subjects itself to.

Then again, the site probably self-selects its target market (or the target market is self-selecting). I just wonder how many dopes are going to be roped into giving this site money to find out that they really don't have a case. I also wonder how many dopes are going to be led into thinking they have a suit, before an attorney from whatever jurisdiction they are referred to says otherwise. I tend to agree with attorney Richard Sharpstein's sentiments: "Our country's courts are clogged with unnecessary and frivolous lawsuits which delay, if not obstruct, the access to courts of people that really need to get there, that have serious legal grievances." I do acknowledge Prof. Lidsky's point that it is another potentially effective internet tool. Then again, they said the same thing about blogging, and look at all the white noise that has been created by that concept.

In the end, if you're foolish enough to check out a website instead of a local attorney, who probably could tell you a much better answer for the same price if not less, you deserve to have your money taken. Obviously if you have a case, you shouldn't need a website to tell you so. The close of the article makes the best point: "However, if you're looking to use the website to find a good lawyer, in most states you could do just as well by checking with the local bar association. In Florida, for example, lawyers can sign up for the state bar's referral system by paying a $125 membership fee, agreeing to charge clients only $25 for an initial 30-minute office consultation and guaranteeing $100,000 in liability insurance coverage."

Less than a month of the clerkship to go

2008-08-05T18:40:00.005-04:00

With what little time I have left in my clerkship, I must confess that I am going to miss it. I certainly recommend it to anyone, and I believe it's reasonable to assume that anyone who took a clerkship would agree that it's a wonderful experience. I've written about clerking a few times over the past few months, so here are some more thoughts about it.

I could write many things about it, and perhaps I will write more over the next month and between the time I start the new job, but I'll hit on the high points since now is the time people are probably getting their applications together to apply for clerkships to begin in fall 2009.

Over the course of your clerkship, and hopefully early on, you (the clerk) will start to get a feel for your judge and the way cases are handled in your court. The workload probably accelerates this effort. I found the best way to learn the writing style of the court (and more importantly, the judge) was to read carefully other opinions that had been written in whatever area I was covering. Not only did that give me a good idea for the law, it gave me a good idea of what facts were considered important and how they were presented.

After a dozen or so cases and probably as many weeks, you should become more comfortable in spotting the underlying issues that are really being debated within whatever area of the law is. This is usually more clear in criminal cases, since there are 50 state jurisdictions and over a dozen circuits (plus a supreme court) that have probably already answered the question, albeit perhaps in different ways. I was always pleasantly surprised when I saw a brief intelligently cite to how other jurisdictions or circuits have resolved or handled various issues, and obviously my role as a clerk was to attempt to synthesize them into some workable and easily read format.

After eleven months of dealing with various criminal issues, I am certain I can put together a brief that would either affirm or reverse any criminal conviction (depending on what side I am on), or at least cause the court some pause in going with the other side. (This last comment is a joke).

At the halfway mark, you should be able to spot whatever issue and gauge relatively quickly the merits of the case. Given the volume, you probably have already learned this, and if you've set your RSS feed to whatever decision the US Supreme Court (or your fellow clerks) have written, you should be well aware that current issues always crop up pretty quickly in unforeseen ways. At the very least, if you have the opportunity to analyze some newly created precedent (good or bad), why not use it?

By the end, however, you'll probably be pretty anxious to get started on learning the ropes at a job where your role is less of a neutral arbiter and more of an advocate. Chances are a lot of your habits will carry over, and you've gained a perspective that is valuable to whatever firm you've decided to go with. You'll also be pretty used to the government hours, and I would venture to say that it's fair to assume that's one nicety you won't be able to take with you.

I'm sure I have some other thoughts rolling around in my head about this, but that's enough for now. If any other clerk has something to add, feel free to comment away. I'll save thoughts on the clerkship bonus, some updated application thoughts, and what not for another day.

Too fit to be president? Has our country become this lazy or has the media through its 24-7 coverage?

2008-08-01T07:31:00.003-04:00

This headline makes the article almost worth reading for its ridiculousness. See WSJ's Too Fit to Be President? Facing an overweight electorate, Barack Obama might find low body fat a drawback. Now there have been some poorly marketed commercials coming out of both sides lately, and the only effect it is having is on the mental acuity of the nation. But this article puts the icing on the cake.

Regarding the McCain ad comparing Obama to a celebrity like Paris Hilton and Britney Spears. I agree with the majority of pundits that this is a very unfocused commercial and sends out mixed messages. I'll not consult my marketing and advertising notes for the exact reason, but I'll simply make a conclusory statement that it's ineffective.

If anything, it's playing into the undercurrent of this campaign that McCain is cranky since it reminds me of something nonsensical that my grandfather would say when he didn't like something but couldn't quite articulate why. There's nothing wrong with opinion; I just see this one being irrelevant. On the other hand, we have become a gossip hungry society complete with voyeuristic tendencies, so maybe it's more effective than I think. On the other hand, if these celebrities haven't been hurt too monetarily by their shenanigans, I doubt this ad will fare any differently when it's all said and done.

Regarding this WSJ article, is it attempting to argue something along this logical premise? Americans are fat and overweight and have positive associations with being fat and overweight. Obama is not fat and overweight. McCain is fat and overweight. Therefore Amerians prefer McCain over Obama. If this is the case, it makes no sense. Yes, maybe all of us overeat and should be in better shape. Who better to look toward than the president to set an example for the rest of the country. I remember when the Clinton-Lewinsky scandal broke and thought how many children are going to hear this story and how it was going to affect their moral compass over the years to come. I'm beginning to think, even in my own case, it had a deeper psychological impact than I initially thought. But after eight years of having a president who ran on the concept "hey, he's someone I could have a beer with" (not that that was bad), maybe it's time to have a president who is not so buddy buddy and is going to take the business of bringing America back up to speed in this world market a little more seriously.

The true mark of leadership is that people are willing to follow because they want to and are inspired to, not because they are told to. Will either candidate's promises bear fruit? Probably not. But which candidate will inspire the next generation to chase after the American Dream? Right now I think there's only one. And his campaign is a little more focused and slightly less negative.

But maybe I'm overlooking something. I'll think about it as I am working out.

Cell Phone Termination Fees Illegal under California Law

2008-07-31T18:21:00.003-04:00

I haven't read the case, nor will I have time to, but I saw a headline that sparked at least enough interest to read the article. See California Judge: Sprint's Early Termination Fees Illegal. I'm sure this will make for a much more interesting read on appeal (assuming they don't reach some settlement, which is equally likely), but the gist of it is that the contracts that basically put a $150-200 termination fee if you decide to get out of your cell phone contract early violate a California unfair practices law.

I agree with the decision in principle, on the basis that the contract itself is a contract of adhesion and since all cell phone companies basically have the same language, you really have no choice to avoid it absent not buying a cell phone or cell phone service. Of course, it only triggers if you break the contract also. Setting these issues aside, I would have to read the opinion and become admitted in California to be able to speculate about their trade laws. In either case, the ruling has capability (potentially) of becoming persuasive authority in a different case in a different jurisdiction. Time will tell to what extent this will actually happen.

In the meantime, I will continue with my cell phone plan, notwithstanding the fact that it's inherently a ripoff. But then again, nobody really needs a cell phone, right?

The Chinese Olympics

2008-07-29T19:13:00.003-04:00

I can't say I'm overly excited about the Olympics. I should be, but I'm not. I have noticed, however, that there is much more news about the weather conditions and press access than the athletes themselves. Maybe that's part of it. At least the world will get a peek at the emerging Chinese market and see exactly what all the fuss is about. That may be worth watching more than the actual games.

Ah, the joy of not having to take a bar exam

2008-07-29T07:11:00.002-04:00

A great many people across the country are sitting down over the next two or three days and taking the bar exam. I wish them well, and I will temporarily rest on my laurels because thankfully, I am not in the same boat.

YouTube Divorce case ends rather abruptly

2008-07-26T08:26:00.003-04:00

I followed this only in passing and only to the extent that it emphasizes my disinterest in family law. Nonetheless, I saw that the husband who was vilified by his ex-wife on YouTube was the victor in their divorce proceeding. While her rant became national headlines and entertainment news fodder, in the end, the neutrality of the law and the prenup did her in. See Husband Wins Divorce From Angry Wife in YouTube Video.

Web networking photos and the effect on litigation strategy

2008-07-22T07:25:00.003-04:00

This headline jumped out at me the other day. See Eric Tucker, Web Networking Photos Come Back to Bite Defendants. Basically, these pictures are being used as evidence in various trials (likely personal injury cases) and, at least in my take of the article, are invoking from the jury (or better, the judge at sentencing) the opposite of what the defense is trying to portray: antipathy.

At this point, I doubt I'll see anything come up on appeal regarding this issue, and even if I did, it would more likely come in the form of a discretionary call by the judge, in which case it's an uphill sell. If anything, I would question the relevance of some of these pictures, but if it is relevant, then I'm not sure how one could (with a straight face) argue that it's more prejudicial than probative. (Think in Liar Liar: "I object! Why? Because it's devastating to my case!") The pictures don't seem to be used at trial though, and they need not be, they are being used as an aggravating factor at sentencing. It's pretty clever.

This presumably took place in a Rhode Island state trial. For example, the prosecutor in this case used the photos to establish a timeline of events: "Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner." To make the case for an appropriate sentence, the prosecutor then "used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital." To the prosecutor's credit, the "judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison." Of course, Lipton's defense attorney notes: "the photos didn't accurately reflect his client's character or level of remorse, and made it more likely he'd get prison over probation." Nevertheless...

The bottom line is that in the age of the internet, everyone should be cognizant of what is going up on you. I know they say you should run a google search once a year on your name, along with your credit reports and what not, but you can preempt this sort of trouble by either making your facebook/myspace profile private; untagging or contacting your friends who put up unflattering photos of yourself, or better, don't allow yourself to be photographed in a compromising situation. As Lipton's attorney wisely observes, you never know when they could come back to bite you: "If it shows up under your name you own it, . . . you better understand that people look for that stuff."

Batman Dark Knight movie review

2008-07-19T12:18:00.004-04:00

I saw the new Batman movie, and I'll say it was pretty good. Kind of long for me and (notwithstanding the suspension of belief already required), some of the storylines were pretty out there (sneaking an airplane into Hong Kong, for example, to extradite a foreign national). Regardless, I thought it was worth seeing, if not in the theater, definitely on your own HD tv. Will the Joker win an oscar? I highly doubt it. Was Heath Ledger a good villain compared to Jack Nicholson? I found their characters much different in a much different story, so it's hard to compare. They are simply different. Nothing good or bad about it.

What I found more interesting is the preview for a new Terminator movie next summer (Terminator Salvation starring Christian Bale), which takes place in the future. Since I have been talking about this for years (and have alluded to this suggestion once before), I think it has much potential, especially if they leave all the time travel stuff out of it. A trilogy though? It reeks of Matrix-esque nonsense. Hopefully it skips over Terminator 3's storyline all together. And given that Arnold is the governor and retired, it seems doubtful he will be in it. We'll see what happens. The preview can be found here (or through a regular Youtube search for Terminator Salvation).

JibJab posts a new ad

2008-07-16T20:19:00.003-04:00

As any reader of this blog can figure out after a few entries, I appreciate intelligent humor above most other things that make me laugh (although I freely admit that I find many more things funny now than I did a few years ago). I speculated last year on the growth of user-generated content on the internet and its effect on political campaigns and the public generally. See User Generated Content and its Effect on the Political Hemisphere.

Well, sure enough, those clever cartoonists at JibJab have waded into the water again. Be sure to check out (if you haven't already), the newest spoof: Election 2008: Time For Some Campaignin'. The original Bush-Kerry "This Land" spoof is also available here. (The links take some time, probably due to increased bandwidth from today's release - but be patient).

CNN also has a condensed link in its report about it, which should be active for a few weeks anyway.

Texas Joe Horn's "make my day" killing

2008-07-08T19:33:00.005-04:00

I've only paid loose attention to this news story other than to get the gist of it. I see it now as an issue of "good state, bad state" (which varies depending on who you are talking to), but more of an issue of individual state rights. For context of my entry, see Commentary: Was Burglary Worth Killing 2 Men?, Texas Law Helped Clear Man in Prowler Shooting; Discussion from Anderson 360 with Jeff Toobin on the case; Texas Man Cleared of Shooting Suspected Burglars.

I recall seeing on the news that a case with near identical facts is before a jury in New York and the charge is manslaughter. Texas, however, applied their "make my day" law to Horn's actions and the grand jury refused to indict him. I spoke to my friend who lives in Texas about it and he told me that he was all for it and that the law works as a good deterrent. I can't disagree with that logic, and I'm sure the coverage of this case has worked to inform the general criminal population that if you go and rob someone, you may be exposing yourself to a deadly response. Most certainly in Texas; and most likely, in many other states as well.

States very on their approach to handling the results, which is to be expected and part of this state criminal system. Whether the law is right or wrong is a matter for that state's legislature, and to the appropriate degree, the courts. What I find fascinating about this particular story though is how quick the media was to pass judgment on so-called "vigilante justice" down in Texas as opposed to the more "civilized" parts of the country. They have done the same thing with variants of Meghan's Law and other child rape statutes. Hey, if one state wants to pass it and another doesn't, so be it. It makes for good national news though, but for substantive analysis, paltry fuel to the fire of state rights.

If you ask me, I'm siding with Texas on this one. I think there are ways to strike a proper balance, and perhaps Texas has since amended the statute to account for when shooting is appropriate. But in a quick second decision, however, I think the law is better served and justice equalized on a reasonable person standard. Obviously the reasonable people in that particular Texas grand jury thought he was in the right. Those in New York did not, and now it will come down to whether twelve of that defendant's fellow citizens feel the same way. As a lawyer, I have presume that the system will perform its function correctly and justice will be served, even if it's at sentencing. I'm sure that part won't make the news though, unless something goes haywire.

Hancock movie review: Worth seeing, not only for its originality, but for its entertainment value

2008-07-05T21:24:00.004-04:00

I saw the movie Hancock this weekend and since I am taking it easy tonight, I thought I would give a quick review as to why I think it's one of the better movies I have seen in a while. Credit to Will Smith for picking another great movie.

Admittedly, the reviews I had read made this movie out to be sort of a let down. They are wrong, and I can explain why. It's not like a "normal superhero movie." There isn't a traditional villain, nor is there a traditional back story. You know why? They have invented a new superhero. And for that originality, they had to use an original approach to developing the character and plot.

You know why these comic book nerds don't like it? Because they are idiots and think that if Stan Lee didn't have a hand in it, it must not be good. These are the same people who prevented Batman Begins from cutting the best line, and what should have been Bruce Wayne's response for when he and those two chicks jumped into the pool and the hotel guy told him that the pool was only there for show: "So are these." For these comic book movies, especially today, to succeed - you need to capture the non-comic book audience in a way the movie is worth watching and can somehow relate, even if they haven't read the comic book. Hancock is one of the few to successfully do this. Spoilers follow my explanation as to why.

Hancock is divided into two parts. The first is a drama which basically has to introduce this superhero. Unlike Spiderman or Batman, there is no explanation of where he came from, he just is. And like the previews explain, nobody really likes him. He saves the day, but on his terms and at whatever risk and cost, mainly because he is invulnerable, like Superman. Then he saves Jason Bateman's character, Ray, (who is much like his character from Arrested Development), who decides to devote his lackluster career to improving Hancock's personal image. We also meet his wife, who is played by an almost unrecognizable, but still hot, Charlize Theron. With Bateman's help, and a little jail time, Hancock begins to win over the public. Nancy Grace even makes an appearance, which supports my suggestion that she serves no newsworthy purpose, but provides ratings for her target market.

Around the time it seems that everything is coming up Hancock, the second half of the movie begins (this is the action part). It turns out that Ray's wife is a superhero just like Hancock. They also set up most of the back story, and enough for what needs to be told to get this movie to its credits. Both are heroes, and have been around for at least 3000 years, but they are the last of their kind. So long as they are apart, they remain immortal; when they come together, they become mortal. The female superhero forgets to tell Hancock this aspect though, and he gets shot.

The final battle scene takes place in a hospital, where the mortal villain (who may or may not have figured out that they were mortal when they were together), tries to kill both of them, and nearly gets away with it. In the end, heroes separate and regain their immortality, and Hancock decides to fight crime on the other side of the country.

I think the movie sets itself up perfectly for a sequel, since a movie had to be created to both invent the characters and begin to develop them. Once this movie hits the DVD world and percolates through the general public for a couple years, I fully expect a sequel, and I'm going to go out on a limb and say that this sequel will necessarily be better than the original because it's possibilities are endless. They aren't constrained by the fallacies of comic book nerdom where critics can say "it's not like the comic book" or whatever other excuse they give for when something is different. I think the critics are mad because they are so used to adaptations from comic books that they don't know a novel concept when it hits them. Good for Will Smith for seeing the potential gold mine in this one.

The movie was good, certainly not a train wreck, and was entertaining and action packed enough to forget that it was only rated PG-13. And Will Smith dropped the f-bomb, which was surprising for an under R movie, but what do I know. I would recommend seeing it, if not in the theater, at some time on DVD or HBO. At least see it before the sequel comes out, because otherwise you'll be lost.

I took a look at some other reviews (here, here, and here) and they were generally the same. I would put this above the second and third X-Men movie, and certainly above Indiana Jones 4. I liked I am Legend (sort of), but it's a different type of movie, and while it's tough to compare, this is better. If you liked Men in Black, you should like this movie.

Pundits with Law degrees - there are only two!

2008-06-26T22:04:00.004-04:00

Having watched the news in the background to some briefing I feel compelled to work on, I am surprised by the number of people who can speak intelligently in such stark contrast to the Supreme Court's gun ban decision, which came out a mere twelve hours ago. The decision is 157 pages! If it took the justices nearly four months to write it, how can anyone who hasn't devoted their entire day (as a lawyer) to reading it, possibly be able to speak with any more than a gut reaction? It simply leads me to think that maybe there is some truth to the idea that all of the media has simply sunk to the level of accepting uninformed musings from the left and right in a not-so-veiled effort to pander to whatever media market is currently in demand.

So, I decided to take a look at the resumes of the talking heads. I know Sen. McCain is not a lawyer, and Sen. Obama is, and interestingly, McCain explained how that was a great legal decision and Roe v. Wade was one of the worst, so I'll leave those comments for what they are worth. Obama is still figuring out how to disagree with it, although given that he is a self-proclaimed "constitutional scholar," he will have to concede that by a 5-4 decision, the second amendment says whatever the majority says it is. I'll reconcile all of this with the idea of a "living constitution" once I can figure out if it's even possible. But neither McCain nor Obama are running the media, so let's just look at the anchors facing the nation.

I'm simply pointing out high school graduation and college/grad degree, and relevance, if any. Feel free to correct me if I have been misled. I'm not going to comment on anything in particular except to mention that I usually watch the first segment or two of the O'Reilly Factor and parts of Anderson 360 (sometimes, and I usually flip to see if David Gergen or Juan Williams is on). Between the two of them, at least I feel that I am balanced out toward the middle. Most of the college degrees are in journalism/broadcast fields or they had some broadcast experience through radio or mixed media while in college (as one would expect).

Bill O'Reilly - college degree; masters in journalism from BU (which is one of the top programs in the country by the way).
Sean Hannity. High school grad and college dropout.
Alan Colmes - college degree.
Greta Van Susteren - college degree in economics; law degree from Georgetown
Chris Matthews - college degree
Keith Olberman - college degree.
Dan Abrams - college degree from Duke and law degree from Columbia
Lou Dobbs - college degree from Harvard
Larry King - high school grad.
Wolf Blitzer - college degree and masters in international relations from Hopkins
Anderson (Yes, I remember you were on Channel One) Cooper - college degree from Yale
And, to round it out: Nancy Grace - college degree, law degree from Walter F. George School of Law at Mercer University, masters in constitutional and criminal law from NYU.

Now, of two of the lawyers who have shows (Abrams and Grace), I have been impressed with neither and now that I've discovered that Abrams is a lawyer, I would question where he comes up with some of his legal analysis, since it seems pretty cursory at best. I haven't watched enough of Greta Van Susteren to form an opinion about it one way or the other (although from what I have seen, it seems more informed and less aggressive than Verdict). I rarely even keep on Nancy Grace's show more than a couple seconds, although I did notice that she put up the address of the Texas Supreme Court when their polygamy decision came down and encouraged her viewers to contact them and complain. Yeah, that will work.

My point to all of this is merely to say that without Tim Russert (college degree and law degree from Cleveland-Marshall College of Law at Cleveland State University), there seems to be some room at the head of these networks for a pundit with a law degree who at least uses it productively. I liked Tim Russert's show and was saddened by his sudden death.

In sum, the fact that most of these broadcasters post-Russert are able to espouse their reasoning as to why such and so legal case was correctly or incorrectly decided, particularly when the odds of them having read through 157 pages as a lawyer would, is just funny. I am a lawyer and wouldn't give an opinion on television about it before actually sitting down for a couple hours and reading through the case. (My other comments today are uninformed at best, but the point of those entries wasn't to provide any legal analysis or opinion on them either). (I also must give some credit to Professor Bainbridge for making a similar point a few years ago when asked to comment on the Disney case when it came out). The fact that they have an audience that hangs on their words and forms an opinion based on their non-legal analysis, however, is not. Am I wrong in being jaded about this? Post away a counterpoint.

Locks, Stocks, and Two Smoking Barrels

2008-06-26T17:52:00.005-04:00

Between guns and oil/stocks, today was a pretty impressive day. I have only begun to wade through this gargantuan opinion, and will likely just skim it because it is unlikely that I will be working on anything over the next two months that will be affected by this ruling (one would hope). Surprisingly (and yet, not very surprisingly), my 5-4 prediction came true. The opinion for DC v. Heller can be found on SCOTUS's site. See also High Court Strikes Down Gun Ban; Heller Discussion Board (SCOTUS Blog): "Clarity is in the Eye of the Beholder"; Scotus initial entry.

I haven't thought much about this case other than I think the majority got it right in principle, although I haven't sifted through the reasoning yet to determine whether I agree or not. And of course, the line about being able to dial the police in one hand with the gun pointed at the robber in the other is funny, and something I remember in a Bugs Bunny cartoon from when I was a kid. If I was a criminal defense attorney, notwithstanding the line about felons, I would be reading this opinion carefully and start raising challenges regarding every weapons offense my client was charged with. If I was a prosecutor, I would start boning up on this law since it's going to provide fodder across the board for years to come. And you thought Crawford caused a big mess for the courts to sort out.

I will say that my cursory glance of the opinion makes me wonder that if they have now read "self-defense" into the second amendment, can they still argue that this "right to privacy" should not have been read into the bill of rights in general? And I'll assume, for now, that this opinion is not a template for statutory construction. If anyone has any thoughts on these two points, feel free to chime in and point out whether my suspicions are grounded in fact or mere speculation. I'll read through the opinion myself soon enough and determine if there is anything worth contributing to the academic discourse beyond these minor blips on the blogging scale.

Beyond this smoking gun, the other big news today was the stock shock that sent the markets tumbling toward yet another devastating day. Even for those clerks going on to big firms in big cities, shouldn't the fact that so many aspects of our economy are tied to the stock market raise some eyebrows? This is a big problem that I try not to think about, but when it starts to mess with my long-term finances, it makes whoever's economic policy is opposite that of whatever got us into this mess worth looking into a little more. I just hope the market doesn't tank any more than it already has over the last six months, but I'm not holding my breath either. I should just liquidate and cut my losses now.

DC Gun ban/second amendment case out shortly

2008-06-26T07:22:00.004-04:00

As the world will soon find out, the so-called "DC Gun ban case" is due out today. See SCOTUS; Washington Post Supreme Court Blog. I, for one, am interested to see how it will be reconciled within the strict constructionist theory. Some initial (and incomplete) thoughts were posted in March.

I'm currently of the mindset that strict construction would not make sense given the fact that everybody had guns back then, and the literal reading of the text "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" may suggest that the clause "right of the people to keep and bear Arms" applies only to the Militia, which in turn is controlled by the State. Since that is certainly an unpopular meaning that would effectively vitiate the individual right, it will be interesting to see how what I am sure should be a 9-0 decision with various concurrences (rather than a 5-4 disaster) works it out.

Failing grades blamed on Wikipedia instead of at themselves

2008-06-22T18:13:00.004-04:00

According to a recent headline that caught my attention, Failing Exam Passes Blamed on Wikipedia 'Littered with Inaccuracies.'. Without reading anything in the article, I am inclined to think that the online encyclopedia isn't to blame for the bad grades, just the person stupid enough to use it. It's one reason why I'm leary of citing it in any opinion I write (and don't, although I may use it as a starting point for research sometimes), and in the few times I have seen a trial court or brief cite to it, I am especially careful of what they are citing it for, why they chose to cite that instead of a more stable and reputable source, and whether they even needed to do so. While I certainly can appreciate using online sources for research, I think the more careful researcher will find better sources.

I say that if Wikipedia is supposed to be an encyclopedia, wouldn't it fall into the general category of disfavor? Or were my high school teachers that taught me not to use an encyclopedia as a cite for references wrong?

Either way, I would hardly blame an online resource for getting a bad grade on a test. I would blame the test taker for failing to do more than cursory wikipedia research.

West should move to a CD/DVD system for its hard copies

2008-06-18T07:35:00.003-04:00

Regional reporters sure take up a lot of space, don't they? And in today's cost and affordable prices for both online research services, it seems odd that the regional reporters continue to pump out book after book, practically on a biweekly basis. Here's a thought? Why not put the all the regional reporters on a 1 or 2 DVD set, containing folders of the PDFs? And since most people print from the online systems anyway, you'd probably have as many people copy the DVDs as you would those who copy the books in lieu of printing from online.

I haven't personally priced out a set of say, P, P.2d and whatever they are up to in P.3d, but I'm sure it will take up more room than a 2, 3, or even 4 disc DVD set. Further updates could be shipped as CDs. There's always a concern for shelf life of a DVD/CD compared to a book, but given the amount of dust that has built up on dozens of books that I know have not been opened in more than half a century, I'm sure that's a problem that can be addressed on an as-needed basis. Think about it.

And here is the rest of it.

What's an 8 letter word for what happens when a jury plays sudoko during a trial

2008-06-11T19:24:00.005-04:00

This little noticed headline caught my attention earlier today. Apparently, one of the attorneys during a trial noticed a few of the jury members writing vertically instead of horizontally. Notwithstanding how that can be noticed, it turns out that five of the jury had decided that finishing their Sudoku puzzles (and some crossword puzzles) was more important than paying attention to the trial. The incessant scribbling had been previously noticed, but attributed to the jurors paying close attention and keeping good notes during this complex trial. The trial apparently had already cost Australian taxpayers nearly $1 million US.

Result? Not surprisingly, the 66-day trial was declared a mistrial. Apparently they are going to start fresh soon. See Sudoku-Playing Jurors Halt Trial; Trial Aborted Over Sudoku-Playing Jurors; Game Over: Sudoku Spoils a Trial in Australia. I wish this was an appealable issue on a case before me, if only for the humor factor involved.

A way to change oil prices without reaching into the pockets of big oil and business

2008-06-10T20:58:00.002-04:00

I will refrain from publishing my thoughts on the economic policies of Senators McCain and Obama for a little while longer since the jury is still out on which plan is actually productive and which is full of air. In the meantime, permit me to offer an idea into the internet discourse on how the Republicans and Democrats over on Capitol Hill can do something to help out the middle class in this growing gas crisis.

The Senate today rejected this bogus concept of taxing windfall profits on oil companies. See Gas lines, Rationing Scare More Drivers; Senate Republicans Block Bill to Tax Windfall Profits of Oil Companies. Good for the Senate. The government has no business meddling in the affairs of corporate profits any more than they already do.

With the premise that something is rotten in the state of Denmark (and by state of Denmark, I mean big oil companies), I must specify that I am basing this entry on my suspicion that there is some sort of price fixing (in addition to the speculation on oil futures and weak dollar) that is working to drive up the price of a gallon of gas. And, unlike other private or public business, oil is sort of an industry of its own. Notwithstanding the ways the government can check this, taxing "windfall profits" is not the answer.

I think a more reasonable solution would be for the government to use its power under the commerce clause to require all cars (imported and exported) to have a MPG requirement of 40 MPG by 2015 and 60 by 2020. This can be accomplished by the increase in hybrid technology or something else. While this acts as an incentive for the car industry, I think it can be pushed into oil company's financial interests by offering tax incentives for those companies who sponsor significant portions of their profit to the car company's R&D departments. Further incentives to big oil can be given for companies that develop new fuel stations (e.g., hydrogen), energy production stations (e.g., hydroelectric, solar, geothermic, wind), and other facilities that would employ thousands of people around the country.

Will this reduce our dependence on foreign oil? Over time, yes. The problem is that these are long term solutions and the immediate results will not come quickly. Basically, the person that pushes for these big ideas is looking at (in all likelihood) a four-year term. Is this the only solution to the big oil problem? Of course not. But it's the only one I feel like developing on a broader forum at this time. We'll see if it gets picked up by anyone of importance.

I must give some credit to Bill O'Reilly for suggesting this in one of his shows a couple of weeks ago. And some derivation of this idea is floating around in Congress. I'm just expanding it to be a little more realistic. Also, I saw a special on the Aptera last weekend that was pretty neat. See my previous writeup on it here.

New Indiana Jones Movie - mildly entertaining, but not worth the $10

2008-06-08T08:45:00.003-04:00

I finally got around to seeing the new Indiana Jones movie this weekend. I had heard from initial reviews that it was okay, and even from a couple of my friends that it was entertaining, and I figured, "hey, it's Indiana Jones, of course I'm going to go see it in the theater." After watching it, I can state unequivocally that Steven Spielberg and George Lucas tested the limits of how much I was willing to suspend my disbelief and continue watching solely because it was Indiana Jones from within the first few minutes of the movie, and by the end, I can state without exaggeration or hyperbole that they succeeded. For my explanation of why each major scene required more and more eye rolling,

Spoilers follow. It's probably easier to simply give this movie a breakdown by scene, which you may think is listed by level of ridiculous, but is chronological. Keep in mind, all of this is ignoring the fact that this movie is about aliens and a psychic warfare plan designed by those pesky 50s commies. I must pay tribute to my friend Keith who had a bit in college that the fourth sequel of any movie takes place in space or has an alien element to it (e.g., Leprechaun 4, Star Wars), although the bit has fallen apart slightly with the latest trend in remaking movies like Rambo and Die Hard.

1. Shortly after his escape from the Russian agents, Indy wonders onto a nuclear testing ground. To escape the pending nuclear detonation, he jumps into a lead lined refrigerator, which happens to be thrown from the blast cite onto the desert ground presumably miles away from radiation and at 700 mph. He survives and steps out in time to see the mushroom cloud balloon into the sunset. Since this is within the first 10 minutes of the movie, I figure, okay, it's Indiana Jones, I'll let it slide. How little did I know.

2. The motorcycle chase through the library. If you saw it, you'll know what I mean when I say this was pretty silly.

3. Using a snake to pull him from quicksand (or whatever he called it).

4. The monkeys scene with the kid. This was about the time my bs meter simply stopped working.

5. The giant ants. One of my friends said that the name of the ants used in the movie actually come from Africa, which sort of gives some credit to earlier rumors that the movie was going to span all seven continents.

6. The aliens in the end. What was the point? The ship got up and sailed away, in a scene that was reminiscent of Close Encounters of the Third Kind or E.T.. Treasure is knowledge? Now I've seen it all. I would put the wedding scene in the end in as well, but by that point, it simply fit in with the theme of the movie. I wouldn't have been surprised if Jar-Jar binks came out to challenge them to a pod race. I also would not have been surprised if Neo came out and said "no."

Other things that were probably more entertaining for kids than adults: the woods chase scene, the big saw blades slicing through the car, the sword fight, the car landing on the branch and then going in the water, and then the branch hitting the people on the cliff, the waterfall, the final scene with hat rolling to his kid, but being picked up by him. I thought that because the last Indiana Jones was 20 years ago, that that may have skewed my perspective somewhat, but figured I would list these points nonetheless.

But the real winner in this movie is Sean Connory. I was a little disappointed when I first heard that he was not going to come out of retirement to reprise his role as Indy's father. After watching the movie, however, I am more convinced that he read through the script and thought, I'm going to sit back and take the check for them using my picture instead.

Overall, the movie is probably worth watching in the comfort of your own home than going to the theater. After all, it is Indiana Jones. But even if you like Indiana Jones and are ambivalent about a sequel and say you'll stomach this new movie, there aren't any giant explosions or anything redeeming about it that makes this movie worth watching in the theater. Compared to the other three, the world (but not one's pockets) would have been just as well off had there not been a sequel, as is often the case.

Movies left that I plan on watching this summer: The Happening, Hancock. I'm sequeled out, so I probably will wait for the new Batman movie until it comes on HBO. I also heard Iron Man was good, but I can wait for that one. Overall, it seems (so far) like a pretty lame movie summer, but who knows what will come out and pique my interest.

Also, there was a trailer for some goofy Brad Pitt movie trailer (The Curious Case of Benjamin Button). Talk about a trailer that you can watch and know exactly the plot from start to finish and make a snap judgment call on why it's not worth watching.

Justice O'Connor lends her name to an online civics program for middle schoolers

2008-06-05T18:45:00.002-04:00

Personally, I think this is a great idea. Justice O'Connor is colloborating with James Paul Gee, a professor at Georgetown on Our Courts, "an upcoming online learning program for middle school students." See G4C: Justice O'Connor Talks Our Courts Learning Game; Retired Justice Developing Online Civics Lessons; ASU Law school press release.

Without repeating much of the article or drawing unnecessary attention to the shot against No Child Left Behind, the site essentially provides an additional and relevant source for middle schoolers to see civics. According to the article, "Our Courts will have two components, said O'Connor: a curriculum portion that educators can use, and another part young people can use in their free time to argue and discuss real judicial problems. The need for such a project has become even stronger in recent years, she added, since the No Child Left Behind Act 'squeezed out civics education' from public education."

Overall, I think this sort of collaboration is a great public service and hopefully will inspire others to do the same. I wish I had something like that when I was in middle school (notwithstanding the fact I didn't have the internet back then either).

Fantasy football owners can breath a sigh of relief, for now

2008-06-02T19:42:00.004-04:00

As I mentioned last week, there appeared to be some truth to this fantasy sports case being challenged in the federal courts and teed up for the United States Supreme Court to take. The Supreme Court, however, thought otherwise and denied cert in the case. See Court Refuses to Consider Fantasy Baseball Dispute. Consequently, fantasy football leagues can continue as scheduled and the MLB, NFL and other professional sports organizations who seemingly are missing out on a potentially huge revenue stream can fight their battle in another circuit and hope for some sort of split in authority. While we wait indefinitely for that to happen though, Yahoo fantasy football drafts will take place in less than three months. I can't wait!

Texas Supreme Court agrees that the police needed more to enter the polygamist compound

2008-05-29T18:22:00.006-04:00

I still have not followed this case any more than I did when the story first broke any more than reading the headlines. I saw that the Texas Supreme Court has upheld the Court of Appeals decision, which had held that the removal of the children from the compound was unwarranted. See Texas High Court: Removal of Sect Kids 'Not Warranted.' The Texas opinions can be found here. The original court of appeals decision can be found here.

I will not comment on the case because I have worked on similar underlying issues in admittedly unrelated cases. I will say that from what I have read about the Texas case, it seems that the majority had it right. The implication, I would guess, is not so much about the rights of these children per se, but the quantum of evidence required for the state/government/police to cross the sanctity of the home or take away a person's children. Given the burden required in a case where children are involved, and parental rights generally, if the trial court didn't find that the State of Texas had met its burden, I'm sure it came as no surprise to anyone involved that those factual findings would probably not be disturbed on appeal.

I also note that the Supreme Court is debating weighing in on fantasy sports. Because this was initially reported by the The New York Personal Injury Law Blog on April 1 (linked originally through Above the Law), I thought it was a cleverly written April Fools entry. On the news today though, it seems that this joke may have garnered some steam, although I haven't found anything on the wires confirming what Fox News has been reporting. It's something to follow I guess.

If the Clinton campaign was a public corporation, there would be multiple shareholder derivative suits

2008-05-26T09:08:00.005-04:00

I have to confess that I was offended by Clinton's most recent remarks, which admittedly, have been blown out of context. I have no reason to be offended by them, but they were just stupid. I accept that it may have been a misstatement, and I also accept that similar statements were (largely) ignored by the press when put in a press article earlier in March. But I don't know what the question was for the March article, and this election is far from where it was in March.

Rather than belabor the point, I will ignore my common sense and assume that politicians routinely speak out of both sides of their mouths and this is just one of those times. I will also ignore the fact that lawyers are bred to choose their words wisely. I will simply say that if I was asked a question about why I'm sticking around this late in the primary process, I don't think I would say something to the effect of "My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June" coupled with "We all remember Bobby Kennedy was assassinated in June in California." To me, it's an odd pair of statements to give in response to a question that simply asked to respond about calls to drop out of the race.

To get to the main point that prompted this rather simple entry, would you still hire Hillary Clinton as president? I think the answer at this point is a resounding no. It has nothing to do with sexism or racism or ageism or whatever -ism these candidates feel like throwing on the public this week. I think examining it from an economic standpoint makes the most sense.

Clinton asked as a couple of weeks ago to "think about this as a hiring decision." Well, here's what she's brought to the table.

A year ago, despite Senator Obama was outraising her, Clinton still had a massive $30 million+ in her war chest. By the end of 2007, she had $100 million to spend on her campaign. 100 million. That's a lot of zeroes.

In May, Clinton has spent all that money and more. Her debt, through some magic of backdating, approximates $20.88 million, which includes personal loans to herself. (Still not sure how you can loan yourself money, but she has figured out a way to do so within the bounds of the tax code). So in less than six months, she has spent more than $100 million?

What does she have to show for it? She's about to lose the primary election. Senator Obama has defeated the once-invincible Clinton machine (ignoring any Lewinsky jokes for the time being). Pride has a cost and it's price tag is $100 million. Now, obviously the numbers aren't so clear-cut, but if this was a publicly-traded company reporting such losses, the stock would tank and shareholders would be pissed.

Granted, many people live their lives spending more than they actually make. It's part of the reason behind this mortgage crisis. Even our country is run regularly in the red. But if you can't handle your own personal finances or hire someone to market or manage them for you, how can you present yourself as someone who can provide economic guidance and structure for the nation? Thank goodness she's not running to work at Goldman Sachs, or for whatever hedge fund that Chelsea works for.

I wonder what Carl Ichan would actually do in real life if Clinton was chairman of the board of the Clinton Corporation. Regardless, I'm more inclined to believe Warren Buffet when he says that our economy will weather whichever candidate emerges as the victor, but that he supports Obama. For now, that's who I remain convinced will be the only candidate who can defeat McCain.

I do have some preliminary thoughts if the race comes down to McCain v. Obama. My January prediction that an Obama-Clinton ticket is unlikely still remains true. I agree with Annie's comments that "If they do run together, I think it will be less of a successful ticket because they obviously hate each other." I also believe that at this point, having her on the ticket would inherently run counter to his campaign for change. We'll see what happens next. At the very least, you can't say the Clintons haven't kept this interesting with an apparently bottomless wallet.

American Airlines attempts to show that it's not going bankrupt by gouging passengers who wear excessive amounts of clothing, such as shirts

2008-05-22T07:24:00.003-04:00

In the world of the ridiculous, American Airlines has decided that charging an extra $25 for a second checked bag is not enough to save them from inevitable bankruptcy and government takeover. In a rather pathetic attempt to "save money," the company has decided that if you check ANY bag, you're going to tip them $25 for the pleasure of doing so. What's next, charging for every piece of baggage you carry-on? See American Joins List of Airlines Charging for a Second Bag.

It's bad enough that all you get (if you're lucky) is a crummy mini-bag of stale pretzels/airline chex mix and, sometimes, a can of soda. I was on a four hour American Airlines flight a couple of weeks ago, and they actually ran out of the snack bags after handing out the first fifty. Their response? "You should complain to the website." Obviously the quality control of this company is up their with the clowns that ran Chernobyl. It makes me wonder if any merger with this company is possible. See How Bad Does it Have to Get Before American Airlines Does a Deal?

Is there anything passengers can do to stop this insanity? That's the most unfortunate part. Unless you are planning on flying Southwest, you're pretty much going to be screwed no matter which carrier you choose. In my experience, I've had bad flights with all major carriers, except Southwest. Maybe the rest of these companies should track their business model by temporarily alleviating long term fuel costs by locking in oil prices at the current $130/barrel for the next four or five years in order to save a bit on the end when prices jump even more astronomically. It's not a perfect solution, but it's something.

Or maybe we need to develop a more fuel efficient jet? Get on the ball Boeing, you're killing us.

Paper money discriminates against blind

2008-05-20T18:19:00.003-04:00

Well, I'm not going to comment on this too much other than to speculate that this sort of suit (a 2-1 D.C. Circuit Court of Appeals decision) will certainly be appealed to the U.S. Supreme Court at some point. See Paper Money Discriminates Against Blind; Court Rules U.S. Bills Discriminate Against Blind. The case (for now available here or here) is captioned American Council of the Blind v. Paulson, No. 07-5063 (D.C. Cir. May 20, 2008). The money line, so to speak, comes at the end: "We hold that the Council has demonstrated both the denial of meaningful access and the availability of facially reasonable accommodations that are feasible and efficacious, and that the Secretary has not demonstrated that implementation of every such accommodation would involve an undue burden." Id. at 33. The dissent makes a much more salient point: "The case is therefore not even close to being in the proper shape for reasoned appellate decision-making." Id. at 5 (Randolph, J., dissenting).

Next thing you know the blind are going to sue the Department of Transportation alleging that street signs are somehow discriminatory in case a blind person decides to get behind the wheel. Don't blind employees have some sort of bill reading machine that helps them read the denomination of the bill? See generally Karla Gilbride, Ourmoneytoo Disappointed In Government's Decision to Continue Court Fight On Tactilely Discernible Currency (2006); Barbara Cheadle, Aids for the Blind: Attitudes the Key (1984); Selective Placement Program Helps Blind, Visually Impaired Employees Be Independent. Perhaps I am being too critical.

Regardless, I'm not going to digest the technicalities of this opinion since anyone can read it and decide who was right before another panel or another court determines otherwise. I do find it sort of interesting how quickly the news jumped over this one. Somehow I don't see the Treasury redesigning bills any time soon, but maybe the true of effect of this opinion is to increase/raise awareness. I'm sure a future article on the topic will be written (at the very least by some reporter the next time an aspect of this case comes up).

Myspace suicides and same-sex marriages - and you thought the subway series was something to chatter about

2008-05-15T18:58:00.005-04:00

Not that I have been following this case beyond the headlines, but I saw that the mother in this MySpace case where the mother posed as a 16-year old boy to pretend to be in love with a girl, which led eventually to the girl comitting suicide. See Mom indicted in deadly MySpace hoax. I can't figure out if the case is being brought in California or Missouri, but either way, I'm sure the news will keep this story afloat. We'll see how the appeals courts handle this one once the sensationalism of the facts gets fritted away.

Speaking of sensationalist cases, the Supreme Court of California gave Gov. Arnold his wish of letting the courts deal with the gay marriage issue and struck down the legislative ban against gay marriage in sunny CA as unconstitutional. See California Ban on Same-Sex Marriage Struck Down. While I will refrain from weighing in, mainly because I have not read the case (In re Marriage Cases can be found here), I think that it will open the door to whether other states can or cannot recognize the marriages which would be legal in one state but not recognized in others. Where this issue gets raised, the power (or perhaps limits) of the "full faith and credit" clause in this regard will be tested. Cf., e.g., Court Rules Against Same-Sex Divorce (RI Supreme Court denying a RI divorce to same-sex couples validly married in Mass.) with In First, N.Y. Judge Allows Gay Divorce (NY trial court permits divorce in NY of a lesbian couple married in Canada). Interesting times on both the west and east coast.

Any former basketball player realizes the point when the game is over, so why can't Clinton do the same?

2008-05-06T21:14:00.004-04:00

As promised, I have not bothered to spend much time thinking about this election since my numbers suggested that the delegate game and debate over who has a better shot of beating McCain has long been over. (I also note that at least one website has come up with similar projection numbers without any credit to anyone... and I remember seeing something similar on NBC a few weeks ago, which i can't find right now, but didn't give it much thought. I found another blog that seems to have the same prediction though). On that point, I figure it's only a matter of time before someone at CNN or Fox News analyzes why my projection estimates are any better or worse than theirs.

Anyway, the numbers, regardless of how Indiana ends tonight, simply don't favor Sen. Clinton. Although Clinton may have implicitly adopted Yogi Berra's "it ain't over till it's over" mentality, the shot clock has wound down and the likelihood of coming back from such a deficit is beyond arrogance. I liken her chances at this point to be about as good as a 15 seed upsetting a 2 seeds (and if Obama wins Indiana, a 16 seed over a 1 seed).

A basketball coach would tell his team to stop fouling at this point; someone should clue in Sen. Clinton that the time has come to start campaigning for her opponent. Who will it be and who does she want it to be may be two different things.

In a somewhat related piece of political humor, I thought the Limbaugh anecdote about President Clinton hitting on his date was sort of funny. See Limbaugh - Bill Clinton Hit on My Date (recounting when "[Clinton] came over three or four times. He had [entrepreneur and Democratic fundraiser] Ron Burkle with him and the mayor of Los Angeles . . . He [the mayor] was going on and on about how he loved me and had to talk to me and after about a minute of talking to the mayor of Los Angeles I glanced to my left and Bill Clinton’s face is three inches away from my date").

Clerk bluebooking

2008-05-06T07:25:00.003-04:00

What is interesting, at least to me (and only to a certain degree) is how different some of my co-clerks' styles are when it comes to the bluebook. Obviously it controls, but there are certainly liberties taken sometimes with how short cites, reference cites, books, typeface, parentheticals, etc. are used. I'm sort of surprised it isn't unified within the courts, but I suppose that would make for a very boring job if all one had to do all day was double check cites and make everything conform to the same system.

In the end, as long as I can figure out what or where the reference is coming from, I can judge for myself whether the sentence that was cited to is accurate or a little bit of a push. Of course, when the attorneys do it in their brief, and they cite to a west headnote page and not the actual page, that sort of mistake is not only infuriating, it makes me that less inclined to have any confidence in the explanation of why the judge did or did not make a bad ruling. Then I think to myself, if I'm just a novice at this and I can figure it out, is there that much overload in work that that person couldn't?

The Volokh Conspiracy almost has the correct plot script for Supreme Courtships

2008-05-03T18:06:00.004-04:00

I saw on Above the Law a thread on Supreme Courtships, the show apparently about the lives and melodrama of this particular subset of clerks. I have written about this show twice before, including the pilot plot. See Fox Greenlights Supreme Courtships and Firms Bump to $35k and The Supreme Courtships Pilot Spoilers.

The Volokh Conspiracy has apparently similar thoughts and access to the pilot, although theirs does not seem as tempting to watch as the summary I was privy to be forwarded. See Hmm, I Wonder Why This Show Never Went Anywhere. The Greedy Clerks board also has a thread going on about the Supreme Courtships show.

So will this show ever hit the air? Post-writers strike, I suppose anything is possible. Maybe some clever 3Ls will spoof the series and put it on YouTube for the world to see. In the meantime, unless it becomes a pseudo-reality show like Beauty and the Geek, I am inclined to think that the networks will stick to knock offs of Law & Order and the Practice.

Last night's Lost episode - best one this season

2008-05-02T07:36:00.003-04:00

I haven't said much about Lost this season, not because I haven't been watching it, but because it just hasn't been that good. Last week's episode, The Shape of Things to Come, was decent, but overall bad (I thought). Last night's episode, however, Something Nice Back Home, started bridging a lot of these gaps that have been created in this season. I haven't not yet decided whether these gaps or the way the show has gone is good or bad, but at this point I feel that I've invested so much time into it that I may as well see it out. I can only hope it gets better in whatever remaining episodes are left.

Shows that have just sucked after the writing strike: My Name is Earl and The Office. It's almost as if these writers have felt the need to just abandon whatever character development had existed and just see how far they can take it before the numbers start dropping off. If you ask me, it's pretty childish. Maybe NBC will just fire them and start over.

Spitzer call girl sues 'Girls Gone Wild' and thinks she has a better chance than the Borat Frat Boys

2008-04-29T07:31:00.002-04:00

Here's a quick morning headline sure to get a laugh: Spitzer call girl sues 'Girls Gone Wild.'. A few weeks ago, when 'Hookergate' was all the news in NY, there was some talk of having this call girl pose nude for 'Girls Gone Wild.' But, upon doing a little internal due dilligence, it turned out she had already posed. See Spitzer escort's 'Girls Gone Wild' videos surface. Offer yanked, so sorry. While there was some earlier talk that she may have been 17 at the time of the videos, it seemed to have died down due to unknown reasons. But, today they have resurfaced.

Apparently, she is claiming that she was drunk and underage when she signed the contract. Obviously both are valid defenses, but I'm guessing there must be some sort of ratification based on payment or subsequent contact if the 'Girls Gone Wild' founder, Joe Francis, says he and his company "have nothing to worry about." In either case, she wants $10 million for her hardships due to this nudery. I'm sure she will have about as much success as those clowns from the Borat movie. How long did that one hang around, a month? Guess those efforts at being a call girl aren't quite as lucrative as one may have initially thought.

A look at the law and salaries from October 1996

2008-04-27T19:09:00.003-04:00

I was doing some spring cleaning today and came across an article from the Oct. 28, 1996 edition of US News & World Reports (pp. 89-99). The article was the "20 Hot Job Tracks" and basically outlined what jobs were hot and up and coming. While I can't imagine the actual reasons I saved this article (other than it probably had something to do with my pending college plans and having no real idea of what I wanted to do), the article has a certain nostalgic quality to it now, and warrants brief discussion.

The law entry is somewhat interesting, if only for the going rate a decade ago. The article primarily focuses on its Nostradamus-like prediction that piracy was giving intellectual property lawyers the edge as far as up and coming areas of the law. And Napster wouldn't galvanize and dominate the college downloading scene for another three years.

What is a better water cooler conversation is the salary breakdown. According to the article, the average entry level salary for an IP attorney was $49,300; the average was $312,600, and the top was $600,000. The runner up position? Corporate lawyer: "It's true that many companies have laid off attorneys. But lawyers with years of experience in securities and transactions are in short supply."

As far as the general salary info for our noble profession, here was the breakdown based on ABA's Bureau of Labor Statistics in 1995 (as printed in the article):

First-Year attorney (law firm): $49,300
General attorney (federal government): $67,900
Patent attorney (federal government): $76,300
Circuit Court Judge: $141,700
Chief Justice (U.S. Supreme Court): $171,500
Partner (Law firm): $375,900 (total compensation).

My how times have changed in only a short time. A decade later, a first year associate starts at $160,000 at a big New York firm, $120,000 for a government attorney; ($50,000 average for everyone else), patent attorney makes $115,000, the Chief Justice's salary is $217,400 and partners make much more than that. Maybe Chief Justice Roberts has a fair argument that government salaries aren't keeping pace with the private sector. Of course, the cost of debt has probably risen just as fast if not faster, and that info is much harder to come by, so who really knows whether there actually is a real difference or not. My guess is that we're (speaking on behalf of a certain range of recent grads) still doing better now than now-partners were doing when they first started.

For another interesting discussion on this topic, see Lawyers Starting Salaries-Misleading? and the BLS report dated December 2007.

High school skipping to meet a presidential candidate costs him his presidency

2008-04-23T22:14:00.003-04:00

A rather simple observation on a rather silly story that was on the news today. Apparently a couple of high school seniors caught wind that Senator Obama was taking a pit stop near the high school and two of these guys decided to cut class to run out and meet him. See Students Suspended for Skipping Class to Meet Obama. What makes this story moderately newsworthy is not that the kids bothered to go back to class and then tell everyone about how they skipped school, or the fact that they got caught and basically got an in school suspension for it. No, one of the kids was forced to resign as senior class president.

What a joke. Graduation for high school students there (like anywhere else around the country) is about a month away give a week or two. What message can this possibly bother to send? Chances are this class president isn't a bad kid, and is probably going to go on to college and do great things. Hell, I was senior class president of my high school and I turned out fine.

If this happened to me, with a month of school to go (if that), I would be livid to no end, and would make sure to make it a point to embarrass the school officials for enacting such a ridiculous punishment. It would be almost enough for me to decide to go to law school just out of spite for the absurdity. I particularly like the administration's lame excuse and elitist attitude: "Assistant Superintendent William King says the rules are clear, and adds that if the students had approached a teacher about wanting to leave campus, they probably would have been given permission." Sounds like this guy needs a lesson from his his supervising superintendent in management.

In all seriousness, the press this kid should get out of this, and the opportunity to rip on his school administration for being so short-sighted should provide for some great stories. If this kid plays his cards right, maybe he would be able to get a sweet internship after his first year of college.

American Idol jumps his contract

2008-04-22T19:58:00.002-04:00

I saw this the other day online and thought to myself, "now, I can't imagine his American Idol contract allows him to do that." And sure enough, it does not. See American Idol's David Cook's digital MP3 album yanked from Amazon. The gist of what happened was that this kid David Cook (who is probably going to finish in the top 2 or 3 of this year's poorly rated contest) decided that he didn't want to go through the proper channels and make a quick buck by releasing some tunes through another vendor seemingly unaffiliated with American Idol. See 'Idol' Singer a Ringer? David Cook's Album Already Out.

Needless to say, it's a fair assumption that whatever contract he has signed with American Idol precludes him from doing so. And as quick as that story of his "unauthorized hits" came (story broke April 21), the free-for-all has been plugged (news reports April 22 that it's gone).

Speaking of which, it's time to what Jason Castro walk off into that great Hawaiian sunset of music television oblivion.

Texas polygamy and the family lawyers/judges that are fixing their coffee right now

2008-04-17T07:32:00.005-04:00

I make this note only in passing because I have a couple of friends who are involved in the family court system either as lawyers or clerks. Supposedly, or at least according to the attorneys I have spoken to, at some point in one's legal career, one crosses paths with the wonderful world of family law. And sometime today in the great state of Texas, 400 or so kids and their respective attorneys are going to try and explain why they should (and why they should not) be taken away from this alleged polygamy sect. See Custody Hearing to Begin in Polygamist Case.

I saw some of the coverage on tv last night as a few of the parents(?) who live(d) in the compound explained how hunky doory it was there. The interview seemed sort of stilted and rehearsed, but what do I know as an average viewer. The whole case to me reeks of nightmarishness for all those involved (including and particularly the court system itself) and the fact this is going to keep playing on the news for however much longer the press can drag it out almost makes watching the election coverage or who gets kicked off American Idol appealing. Almost. Intead, I am enjoying what is beginning to be nice weather and the wedding season.

The Sky is Falling and NASA gets into a pissing match with a 13 year old

2008-04-16T07:38:00.002-04:00

I just saw this story this morning and since I vaguely remember reading something about this a few years and again a few months ago, thought I would click on it. Supposedly, an asteroid is projected to come within a few thousand miles (which is close, relatively speaking) of Earth in about 20 or 30 years. NASA put the odds of hitting at 1 in 45,000. Apparently, a 13 year old German boy, as part of a school project, calculated that the odds were actually closer to 1 in 450.

Whether the 13 year old exposed a massive coverup to avoid general panic or these physicists and mathematicians who are among the most elite in the world miscalculated something a 13 year old could do. The funny thing, to me anyway, isn't whether NASA is right or wrong, but how two different groups are reporting the story. See German Schoolboy, 13, corrects NASA's asteroid figures (I'll change this link once I find the more permanent one). Cf. The Register: Schoolboy's asteroid-strike sums are wrong (stating that the numbers the boy used to make his calculations were actually incorrect).

So who is right? Does it really matter? As is plainly evident by the way things are handled nowadays, I see this as being the next generation's problem. For now, I'll stick with NASA's estimations.

Headlines are good at being poorly misleading

2008-04-14T18:49:00.002-04:00

I have many more fun things to discuss, based in part on the nice weather and my past and pending travel plans, but for now I'll simply chime in on yet another example of bad reporting, or at least "bad headlining." I only clicked on it because it seemed to be legally related and did not make any sense, and when I read through the article, saw that it made perfect sense and the headline was merely sensational gobbledegook.

The headline (on CNN's mainpage): Boy Who Killed Grandparents Won't Get Appeal. Well, that doesn't seem right at all, I thought. But when I clicked on it, the headline morphed into "Supreme Court turns down boy killer's appeal." Well, that doesn't mean that he didn't get an appeal. I'm not going to speculate on the reasons why cert was denied because it could have been anything. I am certain, however, that had he been denied a direct appeal, this defendant would have been successful in some petition for relief. I also find this sentence particularly amusing, if only for the wonder of what they told the reporter: "The inmate's legal team, from the University of Texas Law School, expressed disappointment at the high court's refusal to accept the case." Well, what did they expect? How about a comment on what the prosecutor initially offered before the jury got to sink their teeth into the case and this kid was sentenced to the mandatory minimum?

And any college that permits a field trip to visit a Nevada brothel certainly must have students lining up on the registrar's door to get off the waiting list. This sort of class almost makes those D1 basket weaving courses pale by comparison.

AA starts to fly south, will dissenting shareholders skybus back?

2008-04-09T18:41:00.004-04:00

I have no idea whether AA is publicly or privately owned, but with all of Wall Street shaking on Bear Stearns, subprime mortgages and other messes, I can only imagine the types of litigation brewing in the airline industry (and particularly AA given that flights are being cancelled left and right). And I don't mean crying over spilled coffee or scantily clad airline personnel or passengers (or airlines). I saw on the WSJ Law Blog the other day that during these tougher economic times, it's the lawyers who survive, so maybe our profession is heading into a bull market. Let's hope so.

And I also heard today that there's a plan for some sort of emergency cell phone system. See Nationwide Cellphone Alert System in Works. See also FCC to Propose Emergency Text Messaging System. I remember how annoying the "tests of the emergency broadcasting system" are when they interrupt a television show with an obnoxious and loud screech and beeps.

Now, I wasn't in New York on September 11, so I don't know if something came across the EBS then, but I can just see how potentially bad this idea is if cell phones are going to start beeping incessantly for 40 or 50 seconds during these monthly "tests." And if everybody's phone is going off at once, I can see patience for the Cellphone Emergency Broadcast System wearing out even quicker. But I'm sure it serves a greater economic purpose on some level that warrants its inclusion into our already saturated airwaves.

And to complete the trifecta of legal news saturating the AP wire today, the ad wizards at Microsoft-Yahoo-Google continue to duke it out. See Yahoo/Google Deal is Anti-Competitive says Microsoft.

Enough ranting for now, I have to read some briefs.

Conclusions of Match.com part deux: Still not worth the money

2008-04-07T19:05:00.004-04:00

My second attempt at Match.com, this time as an entry-level employee as compared to as a student had much less success. My conclusions as to why are strewn throughout this entry, but essentially echo those found in these other sites: Match.com sucks for the professional type, if there is such a thing. See Life's Little Vent Sessions: Internet Dating: Why it sucks... (correctly positing the three most common dating types found on the match.com site); Looking for Love in all the wrong places with Match.com (explaining why "about average" is a little misleading in most cases among other lessons to be learned); Online Dating: Great for Women, sucks for men (explaining why it appears at first to be a supply and demand issue, but only for women and providing further explanation); and Why Match.com sucks (providing a funny example of an email).

Perhaps these sites are all biased because they are written by guys (my opinion included), and I would be curious to see what Law With Grace would have to say about Match from a woman's perspective. Or if anyone else has comments or anecdotes, I am slightly curious whether my experience is unique or commonplace. I just hope I never have to become associated as a client number.

For what it's worth, my own experiences this time (and last time) are much the same. Most women, ages 23-33, are just as clueless as I am as to what I think would "work" in a relationship; these same women, however, are not as receptive as to just going out to see if there is a spark beyond the internet screen. I base this statement on the large numbers of winks I would get, which I would wink back at, and then nothing. The couple times I would write rather than wink back, I would get a response less than 10% of the time. And this was keeping to the general rule of writing less than 4 sentences in an email.

While I could deconstruct myself as to why I'm much more successful at in-person introductions than online ones, I am left to think that maybe it was my "about me" description. If I try this again (and I may once I relocate to the city of BigFirm), I'll be less descriptive. Even so, I think that it's still simply going to be a matter of looking at pictures first, then a description, in which case online dating is really no different than going to a bar except that it's much harder to translate charm into written wit without coming across as creepy or desperate.

I also decided to see if it is just the part of the country I am currently in or something else. So I tried LA, Dallas, Chicago, Topeka, Miami, Nashville, Augusta, Boston, New York, Philadelphia, and D.C. to see if more areas had contact than others. Success in this effort? Zero. Maybe I deactivated my profile by mistake; who knows.

Other things of note: At least three of the girls who I contacted complimented me for having no spelling errors in my profile, which I have accepted as a compliment, even though I thought this was a pretty strange introduction. Another wrote that she liked my profile because I had actually written more than a few lines to give an insight into my personality, which she thought was nice. The opposite however, at least upon my reading, did not appear to be true.

I also attempted to email a few women who I thought matched up with me pretty well - other professionals, doctors, teachers, that sort of thing. Of the emails I sent, only one even looked at me. Now, this either means that they were not paying members (so they could not tell who had sent the email) or that they simply saw my picture and thought, nah, or thirdly, what I wrote did not merit a further response. At first I thought it would be nice to have the closure of "no thanks," but after getting a few emails myself, I'm thinking that saying nothing is probably just as polite. Conclusion: Politeness in the virtual online dating world is satisfied by not responding to barrages of emails.

I also attempted to find my "ideal" match by searching for what I thought were things I look for in women (namely height, age, education, profession, body type), and then figured that I could increase my search by plugging in a 3000 mile radius. To my surprise, 792 women matched. Upon clicking through a few, however, I am nearly positive that the match.com algorithm does not attempt to connect with what you are trying to search for.

At the risk of exposing my secret identity, I will say that I attempted to keep my introduction short, put five or six pictures of myself online, and really only limited what I was searching for by height, age, and education. Knowing that the searches only show you either a picture or a 10-15 word description before seeing the whole thing, I attempted to portray myself in such a way that my cleverness would come through. After three months of doing this, I must conclude that I missed the mark completely. I would say it's frustrating, and it is, but I'm not sure what I can do at this point. For now I will simply put on an optimistic hat and continue the assumption that things happen for a reason. That, and I will simply have to return to the bar scene.

For now though, a couple closing thoughts on the topic: Could you meet your ideal match through an on-line dating service? Theoretically yes, but in reality, probably not. At least not for this under-29 year old. Is it worth the money for a one, three, or six month subscription? I would think that if you can't find success after three months, the match.com market will not change dramatically over the next three or six months. Either try another venue (which may or may not have equal results) or join some local group or organization and hope for better sails. Don't spend another dime on this particular dating service.

Bottom lines: Save your $60 for a real date and ask your co-workers to fix you up with someone. Some other thoughts for those who have read so far: Despite my own inconsistency in practicing this, I think it still may be better to do the auto reply "no thanks" rather than doing nothing. At least this provides closure for either an email or a wink. I fully admit that no response after a couple of days should accomplish the same thing because the need to be polite online unfortunately wears thin quickly, at least in my experience.

Without any response, one is left to about whether the responses went through, which could produce real awkwardness. For me, I assumed that they did and simply ignored it, but I could see how others could "try try again." That doesn't work in real life, so why would it work in the virtual online dating world?

Also, if there is a response: The winks back and forth are fine, but I think there needs to be a response after the wink back by the winker, followed by a response by the winkee. Otherwise it doesn't count as flirting.

How much time is enough time in online dating? I think if you haven't gotten a phone number or set up some sort of meeting at a bar within three emails or a week and a day, whichever is first, you are wasting your time or the other person is wasting yours. Meet up or move on.

While I'm on the topic of suggestions as to a better service, I wonder outloud whether there is the need for another online dating source that is highly targeted (e.g., at professionals). If I think all of this warrants a further entry, I'll write one. For now, my opinions about Match.com are even lower than they were before: If you're thinking about subscribing to it, think about it some more. Are there better services? Perhaps, and maybe some others will chime in on them or with their thoughts on this one. Please post away. For me, I'm going to pass on online dating until I'm finished with the clerkship.

Fancast - probably the best current source for online television - and it's legal

2008-04-06T20:33:00.003-04:00

I came across this site today and must provide a slightly unusual free bit of advertising for the service. The site is Fancast, and while it apparently is some subsidiary of Comcast, it has worked out licensing agreements with a bunch of shows, essentially allowing one to watch entire seasons of current and old shows as if you are watching them from the actual network website. For example, if you're a fan of Arrested Development, it looks like the first season is online and parts of the second and third season. You can also watch what I have already disclosed are my favorite episodes of the Practice. You can't watch everything, but the site is a start. You can always get them from itunes or find them on other online sites.

What is interesting about this concept is that it is almost exactly what I had envisioned in an entry from September 2006. It's nice to see my ideas come to fruition in less than two years. Sort of makes me feel better about various pushes in parts of the fourth amendment.

Attorneys generally are quite ready to pump themselves up

2008-04-06T12:01:00.002-04:00

I do have more relevant and timely topics to talk about, I just have to get the time to talk about them. I have noticed, however, that many attorneys, upon finding out that you are (a) either a law clerk, (b) have worked as a clerk, (c) have an interest in law, or (d) have ears, are more than willing to monopolize a conversation about themselves and their accomplishments. It's rather amusing.

The conversations, at least in my experience, trend along this path: "Hi, I am X, I work at X Firm in the X Department. (Bridge segway to shift conversation about X topic to them). You are interested in (X topic) also? Let me tell you about this time I created a derivation of sliced bread about X topic. I, I, I, me, me, me, the judge, the other party, I, I, I, I. Nice talking to you."

It's not good or bad and the level of annoyance varies, but there certainly is a trend of talking. Myself having accomplished very little, I tend to simply listen and take it in. I haven't been overly successful in being able to shift the topic to something about myself or baseball or something else but maybe that comes with time. Is this just me or have I just wandered into conversations with a certain type of lawyer? How do others deal with these encounters, besides simply being polite?

Some april fools day humor

2008-04-01T07:26:00.002-04:00

I am tempted to weigh in on a couple of more timely stories, but at least one of them may wind up in front of me at some point in the next month or so, so I'll simply state that the clerkship work I have been getting lately has been quite satisfactory and interesting, on a multitude of levels. And The Office returns in a couple of weeks, so life is good. And I get to travel to a conference later this week, so that is sure to provide fodder for an interesting anecdote. Words that are being overused in media/the world today: "interesting" and "fodder." Let's add them to the list.

I saw this link yesterday and thought it appropriate for April Fools Day. The Museum of Hoaxes has created a list of the Top 100 April Fool's Day Hoaxes of All Time. Check it out, it's pretty funny.

Lighting system during oral arguments: Red means stop, just like when you're driving

2008-03-27T18:28:00.004-04:00

I am constantly surprised by the number of lawyers who don't understand the lighting system the court uses during oral arguments. Green means go, yellow means you are in your reserve time and red means stop. I have no reason to believe this isn't the same everywhere. Yet, for some strange reason, I've noticed many attorneys are under the mistaken belief that there are two yellow lights - one for when they are in the waning minutes of their opening argument and another when they reargue following the appellee's argument.

This, however, is never the case. I'm not sure how this is difficult to understand, nor can I understand why the attorney, if confused by this green-yellow-red system (which operates like a traffic signal), would not ask the clerk or whoever to explain it to him.

Finally, the Sirius-XM merger is approved

2008-03-24T18:19:00.002-04:00

There are plenty more interesting things to write about, such as the ongoing battle against anonymity in the AutoAdmit AK47 case, a similarly related issue with the JuicyCampus.com gossip site, and a tenuously related issue from the 7th Circuit (Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist) where Judge Easterbrook said (in so many words) that the posters can subject themselves to certain liabilities. While this is all well and good for an article about the internet and anonymous posting, I just wanted to make a comment about the Sirius-XM merger that has finally been given the green light.

One of my January 2007 comments (#5) suggested that Sirius and XM should merge. A little more than a month later, my wish came true. Although tangled up in antitrust land for a while, the DOJ finally cleared the way for what Jim Cramer and I both agree is a good thing: The merger has nothing but upside. And low and behold, the powers that be agree. See XM-Sirius Merger Approved and XM-Sirius Shares Surge on Antitrust Clearance. While I'm sure there is more litigation to emerge (and hopefully not), I was glad to see this headline come across the AP wire.

In the meantime, there are other interesting things to write about, and hopefully this week lends itself to that.

Supreme Court to hear gun ban case today

2008-03-18T07:53:00.003-04:00

I admit that I haven't followed this case too closely other to hear the generalities that it involves the Second Amendment. Nevertheless, the D.C. Gun Ban case is to be argued today and will undoubtedly spark controversy for everybody no matter what the court decides. I'll refrain comment other than to point out that once again, the headline writers show their skills at reading the articles to which they assign headlines. See CNN's Gun Ban Decision: This Time, It's Personal. See also High Noon For the Second Amendment. For reference sake, the text of the Second Amendment states, rather simply, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The case is about whether the anti-Federalist or Federalist position is the one that was adopted (sort of).

The faux movie reference is mildly amusing, but my tiff is with this somewhat misleading sentence: "Today, the Supreme Court will decide whether the city's sweeping ban on handgun ownership violates an individual's constitutional right to 'keep and bear arms.'" I'm not sure they are deciding anything today, but they are certainly going to hear 30 minutes of why the point is right and then 30 minutes on why the counterpoint is. Might be worth catching on the cable rebroadcasts, and it should be almost as exciting as a rerun of Laguna Beach.

Westlaw's green "c" misleading

2008-03-18T07:37:00.002-04:00

This is just a quick gripe about Westlaw. Sometime in the past few months (or at least I've started to notice it, maybe it's been around for a while), Westlaw has begun using its green "C" for "C"ite (meaning something has cited to that case or statute) whenever a party has a brief that cites to the case. Now, I've read enough briefs to know that (a) I probably wouldn't use them for anything of value and (b) they certainly don't have any precedential value. And depending on your Westlaw plan, you can't even access them anyway.

My point is that it's silly and misleading. Particularly if the party is the party who is appealing on that particular case. Granted, if a newspaper or something cited to the case, there's something that may be useful. And obviously law review articles and other cases are helpful if cited. But a brief? Give me a break.

And don't get me started on how many times I've come across an incorrect red flag or a misleading yellow flag. I'm still sifting through this Bear Stearns mess in the meantime, so maybe later today I will have more thoughts on that topic.

Spam keeps getting more clever - "final verification of email account" is as real as the african lottery

2008-03-14T07:37:00.005-04:00

Most of my spam gets filtered away without a second glance except to see the ridiculousness of the subject lines. In this case, I've seen one that is pretty clever (and relatively new), but obviously fake. As with any other spam emails that ask for your username and password, use your common sense and delete it. This particular spam claims to be from an "educational messaging center" purporting to delete all 'edu' accounts. I can only hope nobody is stupid enough to confirm their "username, password, date of birth, and country or territory." The subject line is "FINAL VERIFICATION OF YOUR EMAIL ACCOUNT."

The email is fake and the ip address (at least where mine was from) looks like it came from a hijacked student account from Purdue University, and ultimately from Johannesburg in South Africa. I'm 100% sure that this is probably not the clearinghouse for "educational emails." In my limited search for more information, Purdue has already been clued in on how it's system has been manipulated. See Purdue community warned of email scam. Who falls for these things? As pointed out by this blogger, obviously some stupid kids in the midwest. Way to go clowns.

Then again, who would have thought that Gov. Spitzer was leading a double identity as "Client No. 9?"

Kentucky tries to stop anonymity on the internet: good luck enforcing that one

2008-03-11T18:38:00.002-04:00

Notwithstanding the unlikelihood that this sort of bill would ever pass a state legislature and be signed into law, lawmakers in Kentucky attempted to throw a punch at virtual bullies by requiring "anyone who contributes to a website to register their real name, address and e-mail address with that site." I'll add this to my list of things to address in a future article about blogging, but it suffices to say for now that even if this bill could get past the obvious First Amendment hurdles, which it probably won't, how can it possibly be enforced? One may assume that if a Kentuckian newspaper, for example, creates a forum for online commentary, most of the posters will be within the readership of that paper. It does not follow, however, that all of the posters will be. Seems pretty unusual and disparate to force these newspapers to pony up some dough for these nonresidents. And what happens when someone creates a false identity to post under?

The real solution to this problem isn't this type of law. If anything, the real stick would be to stop shielding internet service providers from liability. That's a federal issue, not a state one. And any change won't come in the context of anonymous internet postings; my guess is that it would come, if at all, in the context of internet piracy. Or maybe some sort of national security reason.

But who am I to say this is right or wrong or what the basis (rational or otherwise) behind this sort of bill would be? If it makes some of his constituents happy that he passed the bill, that's all he needs come reelection time.

Once again a celebrity death emphasizes the need for estate planning

2008-03-10T18:50:00.004-04:00

It's no wonder that estate planning/wills/trusts is such a lucrative practice for lawyers interested in it. While I can't speak to Australian law, I would think that its premises regarding "unborn heirs" is consistently the same as in New York or any other state for that matter. See Ledger's Will Leaves Nothing to Daughter. As I have already written about this before in the context of the late Anna Nicole Smith (see here and here), I see no need to comment further on the subject other than to make one point about the whole unborn heirs problem and how legislatures across the country addressed it many moons ago.

Thus, the AP report that "Heath Ledger's will leaves nothing to his former girlfriend and their 2-year-old daughter because it was never updated after they became part of his life" is deceptively misleading. His daughter should be able to get a certain statutory percentage of her father's estate since she was born after the will was made. While the fact that "the family would make sure the actor's former girlfriend, actress Michelle Williams, and that their 2-year-old daughter, Matilda Rose, would be provided for" is all well and good, the law will certainly step in to protect his daughter if need be. The non-married mother of the daughter, however, is probably SOL.

The bottom line? Get/update a will if you're married, buy a house, or have a kid. I'm sure there are plenty of lawyers who can help you out at a reasonable cost.

Why Georgia, Louisiana, South Carolina, and Virginia are, almost atypically, the key to this election - some final thoughts about the 2008 election

2008-03-09T15:26:00.004-04:00

Let's talk about numbers. It takes 270 points to win the presidential election. Bigger states have more points, but in the end, it's just a numbers game. So who has the easiest road to get to 270? My research, explained below, suggests that Obama can easily get to 270 against McCain, whereas Clinton can, but it will certainly be a harder battle, in over a dozen states, and if the Dems still want to try and duke out Florida and Michigan, the money is probably going to become a bigger issue in the next couple months. My prediction: Obama 320 – McCain 147 (without even considering Ohio and Michigan, or Florida for that matter). Clinton 255 - McCain 201 (leaving much more uncertainty on who can actually win, or how close November 2008 will be).

The point of this entry is just to show a different breakdown of electoral numbers; I would imagine the mainstream media will start making these projections later in the summer, but I'm positive that all three camps have started to run these numbers in much more detail than I have below.

After this entry, I am going to abstain from further comment about this election save perhaps a couple thoughts that may emerge later in the year. My understanding of the bias of the media and after giving some thought to the state of blogging, I am convinced that any further blogging on this topic (by me anyway) will simply be white noise contributing to a larger problem with this particular form of media (more on that another time).

I have run numbers based on whether Clinton or Obama is the front of the Democratic ticket against McCain. While the media has not keyed in on this yet, I see a different "battle ground" of states depending on who is at the front of the ticket. (And, ironically, I note that more media has picked up on my January 21 suggestion that only if Clinton wins the nomination would she go for Obama as VP; the opposite probably would not be realistic). Enough background.

Assuming the "typical Democratic states" stay as much, I see the following four states, and only these four states, being essential to the election this time around (with electoral votes in parentheses): Georgia (15), Louisiana (9), South Carolina (8), Virginia (13). While I acknowledge that these are quite typically Republican states, I see an unusually large amount of Republican resources being used to secure these states if Obama is the Democratic nominee. The point to all of this, as should become obvious if you examine the numbers the same way I do, is to say that Obama probably should be the Democratic nominee, and the media (and Clinton's) continued dragging out of this process is only giving McCain's candidacy more strength. This also assumes that the prototypically apathetic youth vote (captivated by Obama) comes out in droves come November. Here's how I reach this conclusion.

Based on the past four election cycles, the following states are more than likely going to go to McCain in November: Alaska (3); Arizona (10); North Carolina (15); South Dakota (3); Utah (5); Wyoming (3). These additional states are typically Republican and based on the primary turnout, I don't see any indication that they will switch "blue": Idaho (4); Indiana (11); Nebraska (5); Nevada (5); Texas (34). I do acknowledge that Texas is going to be closer than normal, but will assume that it stays Republican for my purposes because Pennsylvania (also close, will likely stay Democratic).

The following states are typically Democratic states: California (55); Connecticut (7); Delaware (3); D.C. (3); Hawaii (4); Illinois (21); Maine (4); Maryland (10); Massachusetts (12); Minnesota (10); New Jersey (15); New York (31); Oregon (7); Pennsylvania (21); Rhode Island (4); Vermont (3); Wisconsin (10). As I mentioned, Pennsylvania is the most vulnerable on this list, but I think it winds up staying Democratic.

This would put McCain at 94 to Obama/Clinton’s 220 without even getting into the close states. Granted, Texas and Pennsylvania provide big swing for either party, but I'll keep them at Republican and Democrat, respectively, for my purposes.

Based on the primary turnout, the following states are going to be close races: Alabama (9), Colorado (9); Florida (27); Georgia (15); Louisiana (9); Michigan (17); Mississippi (6); Missouri (11); Montana (3); Ohio (20); Oklahoma (7); Tennessee (11); Virginia (13); Washington (11); and West Virginia (5). This would leave about 173 "points" up for grabs, which would make the election close once again.

Assuming that all of the republicans who did not vote for McCain stick to the party ticket, the race shapes up to be pretty interesting, but ultimately a Democratic blowout depending on the candidate. I am sure that these similar number scenarios have been run at the RNC, and they have to be scrambling right now if my assumptions are correct.

I see Alabama and Colorado as both being close, with Alabama likely going to McCain and Colorado going to the Democrat (although it would be a less close if Clinton was the Democratic nominee). Florida, in all likelihood, will go to McCain. Republican turnout on that primary day was 1.9 million to almost 1.7 million, so I’m calling it red.

Georgia presents an interesting case. The average numbers of democrat and republican voters over the past four election cycles is 1.134 million and 1.353 million respectively. In the primary, those numbers were 1.046 million to .954 million. Obama won handily over Clinton in this state, drawing almost 700k to 328k (with 18k going to "other"). McCain pulled a little more than 300k, and if you assume the other 650k does not have a high attrition rate, that gives you the 954,000 republican voters. If Obama is the ticket, I think he pulls off a few hundred thousand from Clinton and edges out McCain for the 15 points. If Clinton is the ticket, I think McCain edges her out and the state stays republican. So, there is a 15 point swing depending on who is the nominee.

Iowa, Kansas, and Kentucky are usually close and usually Republican, and for my purposes, will not make a difference in the outcome.

Louisiana, like Georgia, is another interesting case. The state has been convincingly republican the last two elections after being much closer in 1992 and 1996. Democrats and Republicans both had to come out to decide on February 9, and Huckabee edged out McCain 69k to 67k and Obama throttled Clinton 220k to 136k. I see Louisiana having a similar outcome as Georgia depending on who the Democratic nominee is. While it would be less close with Obama as the nominee, I think the nearly 2:1 democrat to republican turnout indicates that this state could go blue. That’s 9 more points.

Michigan, Mississippi, and Montana will be close either way, and I am not counting them here.

Missouri is really the battleground for both parties. Obama edged out Clinton here 405k to 395k, but if you assume Edwards draws more toward Obama than Clinton, his lead increases by another four or five thousand. McCain won this one by the skin of his teeth (194k to Huckabee and Romney’s 185k and 172k, respectively). Dems outvoted Republicans 820k to 584k, and the average over the past four election cycles is nearly even, at 1.112 million democrats to 1.086 million republicans. Given the turnout, I'm inclined to give Missouri to the Democrats, and more inclined to do so if Obama is able to pull in similar numbers. Thus, there is another 11 points up in the air, with the edge going to the Democrats.

I would guess New Hampshire is going to go democratic. Primary voting for the democrats exceeded that of that state’s 4-term national average (284k compared to the average of 265k), and the Republican turnout was nearly as high (233k turnout nearly the 250k average). Presuming similar numbers, I would say this one goes to the Democrat candidate regardless of the nominee. On primary day, Clinton edged out Obama. 4 points isn’t a lot, but it’s something.

New Mexico, Ohio, Oregon, and West Virginia are hard to say. No matter.

I am inclined to think that North Dakota could flip, despite it typically being a Republican state. I only base that off of the 2:1 primary turnout for the Democrats. Romney won this state over McCain, and Obama had a 3:2 advantage over Clinton (12k to 7k) but compared to ND’s national average, primary day there had a relatively low turnout. Nevertheless, even if it stays Republican, its too little points too late in the process.

South Carolina is typically republican, but I think Obama could pull this one in for the democrats (presuming Edwards support helps). Turnout for Democrats, as in New Hampshire was nearly the national November average (530k voted compared to 552k four-cycle average). On the republican side (on a different day), 442k came out to vote (compared to 718k average). McCain won with 33% of the vote, and Obama nearly 55% to Clinton’s 27%. If Obama can pull Edwards supporters, he nearly doubles that of McCain, and still edges him out if you put together McCain and Huckabee’s combined vote. Clinton, by comparison, came up a bit short against McCain (141k against 147k). I would count this state as +8 for the Democrats if Obama is the nominee, and +8 for the Republicans if Hillary is.

Tennessee is another close one. On both sides, primary turnout was about half of that state's 4-year voting average. Clinton won this state pretty handily over Obama (332k to 250k), and Huckabee took McCain on it. This is going to be another battleground state for 11 crucial points, regardless of who the nominee is. I'm inclined to give it to the Dems, however based on the primary turnout (which, may have been in part due to Obama).

Washington and Virginia are typically close. Washington has gone democratic by a slim margin each of the past four election cycles, and I would imagine it would stay the same this time around. Washington went 70:30 for Obama over Clinton on February 9, and Clinton would have beat McCain, but counting Huckabee and Paul, it would be close like normal. I think if Obama has the nominee, Washington is won handily by the Democrats, but if Clinton is, she still wins, but it makes for a much tighter race. +11 for Democrats.

Virginia tends to go Republican, but given the turnout, I’m inclined to think that Obama can pull in huge numbers and possibly a huge upset. Voter turnout for the Democrats was 75% of the 4-year average (970k compared to the 1.2 million average). Republican turnout was far less than the average, almost 500k compared to 1.3 million. This was another state where Obama had a nearly 3:2 advantage over Clinton. Obama’s 623k would have beaten both of McCain (244k) and Huckabee’s (200k) votes combined; Clinton as nominee (347k) would make the race much closer, and probably once you factor in the regular average, would go to McCain. So, this is another 13 point swing depending on whether Obama or Clinton is the candidate.

If my 220-94 initial number is correct, then the Democrats would need only 50 more points to win. Assuming Washington stays blue, that puts the Democrats only 39 points away from locking in a victory without even worrying about Ohio, Florida, or Michigan. This assumes that the Democrats hang onto Pennsylvania.

Thus, I see this election most easily coming from just four states: Georgia (15), Louisiana (9), South Carolina (8), Virginia (13). The 45 points give the Democrats the victory without even worrying about the typical "swing" states (Florida, Ohio, Michigan). New Hampshire is unnecessary, but certainly provides another four point cushion.

If those states that typically vote Democratic stick with their party, the race really could come down to winning these four states. The rest, while important for the winning party to take in order to try and unify the country, are "battles" as usual, but only if the campaigns are as they have been for the past two cycles.

As I have explained, each of these four states (Georgia, Louisiana, South Carolina, and Virginia) was won convincingly by Obama in the primaries, and given the increased voter turnout in each of them, the Republicans would be foolish to think these are a lock if Obama is the candidate. If Clinton wins the nomination, however, these states are as up in the air as Florida, Michigan and Ohio. Just looking at the numbers, McCain fares a much better chance against Clinton than Obama. While both races may be ultimately be close, it’s no wonder that McCain and the Republicans would rather have Clinton at the top of their ticket. My question is why the Democrats haven't thought this one out in this fashion yet. Maybe they just want to lose.

I'm sure both parties have better access to voting information than I do since mine is based simply on data in the public domain, and have superior mathematicians and statisticians who can analyze it and make more educated projections. Nevertheless, if Obama wins the nomination, it seems that he pulls from a broader spectrum of voters, which only diminishes McCain’s chances. Clinton seems to pull from the same pocket, which lends itself to a similar 50/50 split.

Without counting Kentucky, Michigan, Mississippi, Montana, New Hampshire, New Mexico, Ohio, Oklahoma, and West Virginia, my prediction scores of the electoral college are as follows: Obama 320 – McCain 147. Now, Ohio and Michigan (and Florida) and the other states are all important for the good of the country, but even if it's close, these other states won't make up the difference if the Democrats focus on and win these four states.

If Clinton is the ticket, I see a lot more states up in the air (including these four), although realistically, Clinton probably has the edge out all things considered. Relevant to my point, the closeness of Colorado, Georgia, Louisiana, South Carolina and Virginia may keep them Republican, and leave Tennessee even more susceptible (hence I don’t count it either way). These four or five states swinging the other way puts her at 255-201, and in a similar battle to that of 2000 and 2004.

I think my bottom line is clear. Republicans have a much easier road to election victory with Clinton as the front of the Democratic ticket; it becomes much less certain and vulnerable if Obama is. That being said, I fail to see why Clinton is so adamant about being on top of the ticket and the media continues to tout this whole process as being Clinton against the world. I thought the point of either party is to put up the candidate they think has the best chances of unifying the country. Perhaps I am being naive. Hasn’t this country been divided for long enough though?

My conclusions are based on my research on this subject (based in part on CNN's primary data, the national archives, and Dave Leip's Atlas of Presidential Elections (compiling historic election data)).

Finally this election nonsense will be over (hopefully)

2008-03-04T18:05:00.002-05:00

I was joking with one of the other clerks that maybe tomorrow the news will have something other to talk about besides who will win the primaries. The response? Perhaps, but then the next few months will be speculation about who will be the VP and who should win between the R's and the D's. November can't get here soon enough so we can move onto more pressing matters. Like who will win in 2012.

In the meantime, I'm going to try and see if I can convince Skittles to modify their sugar coated candy and remarket it as a cold remedy to compete with the market vacuum created by Airborne's placebo. Thought you could drink away the common cold with a swig of some canned air? Join the Airborne Settlement and get some money back.

Some facts you need to know about NY and a top 10 list of interviewing tips

2008-03-04T07:31:00.003-05:00

Apparently, some of the questions asked during the interview prior to the NY bar swearing in ceremony are quite unceremonious. The best one I heard about started off with the interviewer asking whether they understood that the NY court system is opposite that of nearly everywhere else, mainly because the trial court is the "supreme court" and has "justices" whereas the highest court is the "court of appeals" and has "judges." I am pretty sure this is taught on the first day of every civil procedure class and would not even be the $100 question on lawyer Jeopardy. I also enjoyed the question, "So, do you have any questions about life?" Hmm.

The whole thing reminds me of another, more humorous take on the interview process generally. Here is one person's recollection of "what I said v. what I should have said." Credit to Top 10 Law Firm Interview Questions.

"One of the worst experiences in law school has been the ritual of submitting applications for summer employment and then going through a series of 20-minute screening interviews that would put a marine drill sergeant to shame when it comes to humiliating and dehumanizing you. Here are my top-ten (least) favorite questions, and how I actually answered them as opposed to how I would have liked to answer them.

1. Why are you interested in this firm?

What I said: Your firm handled (insert name of case I read on their website) which I found to be exciting because it was just like another case I was reading in this class I got an A in. I've also asked some (read: none) upper class-men about your office and they said it's a great work environment.

What I thought: I looked through your attorney roster and saw that you hire people who do not appear to have any honors and come from bad law schools. That made me think that I have a chance to work here.

2. Why did you go to law school?

What I said: I went to law school because I want to be able to make a difference. Legal work allows me to be competitive and to work for justice, both of which are important things in my life.

What I thought: That's a good question, and I ask myself it daily. I'd have to say the answer is, stupidity.

3. Do you think your grades are an accurate reflection of the kind of work you will do as an attorney?

What I said: Law school has been a challenge, and I think my grades reflect that. More important than my grades, which by the way have steadily improved over my academic career, is my dedication to the work I do. My performance during my summer jobs is the best indicator of how I will work, and you will find that my previous employers were all pleased with me (or at least forgot who I am and so will not remember the fuck ups).

What I thought: My grades are absolutely a good reflection of how I will work. I will put in the minimum amount of effort needed to not get fired, and I will approach my job with contempt and disinterest.

4. What would you say is your greatest weakness?

What I said: My greatest weakness is that I get too personally involved with my work. For instance, when I am working on trial prep, and then the case settles favorably, I feel as though it should have gone to trial anyway, despite knowing that the settlement is what's best for our firm and our client.

What I thought: Pussy. If there are any females in your office, you can be certain I will work twice as hard to get into their pants as I will to make my billables. And yes, since you require us to bill 1,900 hours, that means I will be sexually harassing my co-workers 3,800 hours a year.

5. Tell us about a recent mistake that you have made.

What I said: I accidentally misfiled a case at work that was set to go to trial the next week. As soon as I realized this, I alerted my supervisor and disaster was averted.

What I thought: An even bigger mistake I've made has been wasting 20 minutes of my life in this interview instead of taking a dump, that would have been much more satisfying and productive.

6. What do you do for fun?

What I said: I enjoy jogging, skydiving, and traveling to exotic countries.

What I thought: When I really want to have fun, I grab my "Big Butt Sluts # 24" DVD, a bottle of Bourbon, and a bottle of lube. By the end of the night, both bottles are empty, and my room smells like jizz and puke.

7. Tell us about your style of leadership.

What I said: I lead by taking the initiative and working proactively with my peers to come up with solutions.

What I thought: I lead by playing "The Eye of the Tiger" on a boombox while pounding my fist on the table and shouting insults. (It works, I've done it)

8. If you don't get hired by this firm, what will you do?

What I said: I will analyze what I could have done better during the interview and take that knowledge with me into my next interview with [rival firm name].

What I thought: I will breath a sigh of relief that I won't be working for an asshole like you. Or I will stalk you and slit your throat. I haven't decided yet.

9. Do you have any questions for us?

What I said: Will I have a key so that I can come in and work on the weekends?

What I thought: Will I have a key so that I can come in and have sex with my girl friend on my desk on the weekends?

10. We value creativity among our associates. With that in mind, what kind of plant would you be, and why?

What I said: I would be a tree, because they are tall, strong, and live a long life.

What I thought: I would be a tree, so that I could fall on you and kill you."

Chinese takeout at the airport: A safe bet except at DFW

2008-03-03T18:22:00.003-05:00

After a brief hiatus to the middle part of the country, I have returned reinvigorated to the east coast for the remainder of the six months I have left in my clerkship (entry about that to come later this week). There is much to write about, however, I will need to gather my thoughts for dramatic effect and more cohesive commentary. In the meantime, I'll make a less cohesive commentary about a chinese takeout place I ordered at over the weekend.

In my experience, chinese at an airport is normally a relatively safe bet although I agree you have to be in the mood for it. If you like chinese and you're in a hurry, chinese takeout is usually the way to go in terms of speed and cost (and you can scarf it down before you have to run to catch your flight). If you're in DFW though, take a pass and save yourself a bad meal by avoiding the Manchu WOK. It's the worst chinese I've ever had (in my opinion).

I recognize, rhetorically, that if you're going to Texas, there are far better eating establishments than an airport chinese takeout place, even in the DFW tarmac. And maybe I just had a bad batch of orange chicken, rice and beef and vegetables and I'm sure others have different experiences which they are welcome to post. Nevertheless, one bad experience is enough to say that I would never go there again and it's probably going to be awhile before I eat chinese again. While I've eaten at some bad places and rarely devote time to write about them, Manchu WOK at the DFW airport bears the distinct distinction of being among the worst.

And so I balance this bad food experience with a superior one, I also got a chance over the weekend to eat at Campisis in Dallas and it was among the best pizza places I've ever been to. I was told there is other good stuff on the menu as well, but I can only talk about the sausage and mushroom pizza, which was fantastic.

Speaking of food, time for me to eat.

Attorney frustration

2008-02-26T19:33:00.003-05:00

Sometimes, and without tipping any cards or hands, I read some of these attorney briefs and wonder what are these people thinking? Granted, while some, if not a majority of the briefs we receive are written very well, every so often we get some that make me wonder how these attorneys can, with a straight face, argue that Case X says Y (when it clearly says Z).

Myspace friend request violates protective order

2008-02-24T10:24:00.004-05:00

This was a pretty neat news snippet I saw the other day. In an interesting case that is sure to cause Family Courts around the country to start giving this issue some thought, a New York judge recently decided that a Myspace "friend request" could violate a TRO or temporary restraining/protection order. I would imagine this is applicable also to Facebook, and realistically, could be extended to email as well. This would be an interesting case to talk about on appeal, but I doubt I would ever see anything regarding this in the next six months. See MySpace 'Friend Request' Could Violate Protection Order. See also Evan Brown's write up on it and while I can't find the opinion online, the Westlaw cite is New York v. Fernino, 2008 WL 382348 (N.Y. Crim. Ct. Feb. 13, 2008).

Some of my thoughts after reading the opinion. First, the Hamlet quote is a neat introduction, but unnecessary dicta. Second, I'm leary of citing to Wikipedia in court opinions for anything because, to me, it's not quite there yet. In every case where I've needed to find something, Wikipedia may provide some general research background, but eventually I can find what I'm looking for either in another case or law review article. If it's that recent, I'm sure the attorneys will have pointed it out to me. Of course, this is a trial court and not the Court of Appeals, so take that for what it's worth. Third, the defendant is a girl who spells her "Melissa" name with only one "S." (People v. Melisa Fernino, presuming it's a pseudonym).

The impact and value of the case remains to be seen. I think it may be the first of its kind to get any sort of news, which is good for other courts confronting the issue (and, likewise, for victims to use to raise the issue before the trial court). It also could certainly provide an novel section in a MySpace and Facebook type law review article.

Frozen in Time Prank

2008-02-24T10:18:00.003-05:00

I heard about this the other day and the prank, if that's really what you can call it, is visually impressive. Basically a large group of 200+ people walked into Grand Central Station and decided to "freeze" themselves in place for five minutes. As you can see by the videos, the effect is pretty neat. The link also contains a similar stunt that was pulled off in London. See Best Prank Ever: Stopping Time at Grand Central Station.